Citation Nr: 1326338	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  10-09 387	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Kathy A. Lieberman, Attorney


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel



INTRODUCTION


The Veteran had verified active service from November 1966 to November 1970.

This matter comes to the Board of Veterans' Appeals  (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The case was previously before the Board in February 2012, at which time the Board denied the claim.  The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (hereinafter referred to as "the Court").  The parties entered into a Joint Motion for Remand.  In an Order of October 2012, the Court vacated the Board's decision and remanded the matter, pursuant to the Joint Motion for Remand. 


FINDINGS OF FACT

1.  The Veteran's left ear sensorineural hearing loss is shown to have clearly and unmistakably existed prior to his period of active service and clearly and unmistakably was not aggravated during this period of service.

2.   The preponderance of the evidence indicates that the Veteran's right ear hearing loss did not have its onset in and is not otherwise related to active service. 

3.   The preponderance of the evidence indicates that tinnitus did not have its onset in and is not otherwise related to active service or any service-connected disability.




CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred or aggravated during active service nor may sensorineural hearing loss be presumed to have been incurred therein.  38 U.S.C.A. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.159, 3.385 (2012).

2.  Tinnitus was not incurred or aggravated during active service. 38 U.S.C.A. §§ 106 , 1011, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

In a June 2008 letter, the agency of original jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a)  (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b)  (2012).  The AOJ notified the Veteran of information and evidence necessary to substantiate his claims.  He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide.  In the June 2008 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A  and 38 C.F.R. § 3.159(c).  The Veteran's service treatment records were obtained and his VA and private records have been associated with the claims file, to the extent available.  All reasonably identified and available medical records have been secured. 

The Veteran was also afforded a VA examination in September 2008 in conjunction with his claims and the report is of record.  The Board's duties to notify and assist have been met. 

II. Factual Background and Legal Analysis

The Board has reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 

The Veteran asserts that he was exposed to acoustic trauma from pump engines during military service in his work as a water and waste specialist.  He believes that this exposure caused him to develop bilateral hearing loss and tinnitus. 

Under 38 U.S.C.A. §§ 1110  and 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.  

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004). 

"Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a).  Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b). 

In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307  are also satisfied.  38 U.S.C.A. §§ 1112 , 1113, 1137; 38 C.F.R. § 3.309(a).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b)  only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96   (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a)  as "a substitute way of showing in-service incurrence and medical nexus.")

Notably, the Walker decision appeared to operate on the assumption that sensorineural hearing loss was not considered a "chronic" disease for purposes of 38 C.F.R. § 3.303(b).  This case did not contain any discussion as to whether sensorineural hearing loss came within the definition of an organic disease of the nervous system which is listed as a chronic disease for purposes of 38 C.F.R. § 3.309(a) . 

VA has a policy that sensorineural hearing loss is deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a).  See Veterans Benefits Administration  (VBA) Fast Letter 10-02 (Mar. 18, 2010).  See also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system).  As the Walker case did not expressly address this issue, the Board will deem sensorineural hearing loss as a "chronic" disease for purposes of this decision.

A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111.  The plain language of 38 U.S.C.A. § 1111  requires that there be an examination prior to entry into the period of service on which the claim is based.  Jones v. Shinseki, 24 Vet. App. 40, 45   (2010). 

When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service.  Wagner v. Principi, 370 F. 3d 1089, 1096 (2004).

A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153.

However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. § 3.306.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition.  38 C.F.R. § 3.304(b)(1), (2).

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77   (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 

Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). 

Hearing loss disability is defined by regulation.  For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz  (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

In Hensley  v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) stated that 38 C.F.R. § 3.385  does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  Id. at 159.  The Court explained that, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Id.  at 160.  The Court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id.  at 157. 

Service treatment records reveal that, when the Veteran was examined for pre-induction in October 1966, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5(20)
0(10)
0(10)
10(20)
10(15)
LEFT
5(20)
10(20)
0(10)
10(20)
45(50)

The examiner noted mild scarring in the Veteran's left ear and high frequency hearing loss, neither considered disqualifying and the Veteran was found qualified for active service.

The Board notes at this juncture that the Joint Remand requested an explanation concerning conversion of pure tone thresholds from American Standards Association (ASA) to International Standards Organization (ISO) in the previous Board decision; noting that someone had talked to someone at Veterans Benefits Administration who indicated that there is no certainty about what standards the military used between 1964 to 1970.  No attribution or basis was offered in the Joint Remand concerning this assertion.

Concerning the conversion from ASA to ISO, the Board relies on M21-1MR, Part III, Subpart iv, Chapter 4, Section B, which indicates in part that audiometry results from before 1969 may have been in ASA units and that later testing will be to standards set by ISO/American National Standards Institute (ANSI).  The M21 directs that an audiologist's opinion will be needed to interpret the results and convert test results to ISO/ANSI units.  The Board obtained such opinion in May 2013, detailed more thoroughly below, and the pure tone thresholds above are those indicated by the audiologist's opinion.  The opinion is authored by the Chief of Audiology and Speech Pathology Services at the Edward Hines, Jr. VA Medical Center in Hines, Illinois.

When examined in August 1969, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
15
20
LEFT
20
10
5
10
45

The Veteran was examined for separation from active service in September 1970, when pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
15
20
LEFT
20
10
5
10
45


In February 1985, the Veteran was examined for enlistment in the United States Air Force Reserve National Guard, and pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
25
30
LEFT
20
10
0
60
50

The examiner noted that the Veteran had high frequency hearing loss and he was found qualified for enlistment.

Post service, March 2008 private audiogram records indicate that the Veteran had mild to severe sensorineural hearing loss in both ears, consistent with VA regulations. 

In September 2008, the Veteran underwent VA audiology examination.  According to the examination report, the examiner reviewed the Veteran's medical records. She noted that his 1966 induction examination revealed normal hearing in the right ear, and a 45 db hearing loss at 4000 Hz in the left ear with identical results at the September 1970 separation examination.  The Veteran gave a history of exposure to acoustic trauma in service from large diesel engines and pumping stations without hearing protection while working in civil engineering.  He also had civilian noise exposure working in an asphalt plant and laying asphalt, with recreational noise exposure from hunting, when he did use hearing protection.  The Veteran also had constant bilateral tinnitus.

Upon clinical evaluation, the diagnosis was moderate to severe sensorineural hearing loss, bilaterally, that was consistent with VA regulations, and constant bilateral tinnitus.  According to the VA examiner, the Veteran's service treatment records show no progression of a pre-existing hearing loss in the left ear during active military service.  His hearing was within normal limits in the right ear throughout military service.  She also noted that his service treatment records were silent for tinnitus.  According to the VA examiner, noise-induced hearing loss/tinnitus occurred at the time of the exposure, not after the noise has ceased. Thus, in the VA examiner's opinion, the Veteran's pre-existing left ear hearing loss was not aggravated by acoustic trauma during military service and his current right ear hearing loss and tinnitus were not the result of exposure to acoustic trauma in service.  She also opined that the Veteran's tinnitus was likely as not a symptom associated with his hearing loss.

The Veteran, through his representative, obtained a private opinion dated January 2013, without examination of the Veteran.  The audiologist indicated that typical noise induced hearing loss will not appear on a separation evaluation unless there has been acoustic trauma.  The audiologist conceded that the Veteran's hearing was the same at entrance in 1966 as it was at separation in 1970.  She also observed that the 1985 audiological evaluation of record indicates a progression of hearing loss in the left ear and hearing within normal limits in the right ear.  The audiologist indicates that the Veteran worked in a noisy environment without hearing protection for many years post-service.  As there are no annual hearing evaluation records in the claims file, the audiologist for some reason "was left to assume" that noise levels on the job were such that OSHA regulations need not be implemented.  She also reported that the Veteran hunted with hearing protection.  The audiologist also notes that in 2008, a mild to severe sensorineural hearing loss was noted in both ears.  The audiologist indicated that she disagreed with the findings of the September 2008 VA examiner; in her opinion it is unlikely that the Veteran's hearing loss is due solely from the noise exposure he "may" have experienced in his work after his military service; thus, it is at least as likely as not that his hearing loss is related to noise exposure in service and his tinnitus is due to his hearing loss.   Unfortunately, the private audiologist did not consider aggravation of pre-existing hearing loss in the left ear, which is the only legal basis for entitlement to service connection once the pre-existence of a condition (prior to military service) is found.

As indicated, the Board requested an additional medical opinion to consider the Veteran's contentions.  The May 2013 opinion is authored by the Chief of Audiology and Speech Pathology Services at the Edward Hines, Jr. VA Medical Center in Hines, Illinois.  The examiner reiterated the pertinent evidence in the claims file, as already noted.  The examiner found that there was no aggravation of the Veteran's left ear hearing loss during active service as there was no change in hearing thresholds from induction to separation from active service.  The examiner quoted a 2005 study from the Institute of Medicine on Noise and Military Service which found that there is no basis for the presumption of delayed onset of hearing loss following the cessation of noise exposure.  The examiner also indicated that it is less likely than not that the Veteran's current right side hearing loss is the result of (audiologic) injury in service as there was no significant change in hearing thresholds from induction to separation.  The examiner agreed with the private audiologist's report in determining that the Veteran's tinnitus is secondary to his hearing loss.

Here, the Veteran's examination on entry into service included normal right ear audiometric findings, but high frequency hearing loss was noted, apparently a reference to left ear hearing loss at 4000 Hz when a 45 db loss was reported.  All of the medical opinions of record have determined that left ear hearing loss pre-existed service.  Thus, the Board finds that the Veteran's left ear hearing loss, as noted on his entry physical examination, pre-existed active duty. 

The next step of the inquiry is to determine whether the Veteran's left ear hearing loss was aggravated in service.  A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. VAOPGCPREC 3-2003 (July 16, 2003).

While service medical records confirmed his left ear hearing loss, there is no competent evidence that the disorder was aggravated in service.  In fact, as noted by the three medical opinions of record, the Veteran's left ear audiometric findings at separation, at 4000 Hz. were identical (actually slightly improved as) to those reported at pre-induction.  Thus, there was no increase in disability, by objective evidence.  The symptoms exhibited prior to entering service, the diagnoses, and degrees of impairment were similar to separation examination manifestations.  There is no competent evidence refuting this fact. 

Furthermore, the September 2008 VA examiner, who reviewed the claims file and performed a clinical evaluation, found, without equivocation, that the Veteran's left ear hearing loss was not aggravated by service.  Rather, she explained that the service treatment records show no progression of a pre-existing hearing loss in the left ear during active military service.  Moreover, the VA examiner noted that the Veteran's right ear hearing was within normal limits throughout military service.  The May 2013 expert opinion agreed with these findings.

The VA opinions are factually accurate, fully articulated, and contains sound reasoning.  In this regard, the Board observes its duty to assess the credibility and weight to be given to the evidence.  See Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992).  The Board finds the VA expert opinion dated May 2013 to be more probative than the private audiologist's opinion as he had an opportunity to review the Veteran's claims file, including the opinion of the private physician and the September 2008 VA examiner, and provided a thorough rationale for his opinions based on the evidence of record and the Veteran's contentions.  

Additionally, the Board notes that the May 2013 examiner made his determination based on the contentions of the Veteran.  In this regard, the Board notes that the private audiologist indicates that the Veteran "may" have been exposed to post-service noise and determined that the Veteran was not in a noisy occupational environment post-service because there was no work-related audiological reports in the claims file.  The Board notes that the June 2008 VCAA notice asks the Veteran to provide any employment physicals.  The Veteran did not do so and did not provide information with which to obtain such physicals.  Clearly, this does not determine that the Veteran was not exposed to occupational noise post-service or the extent of such exposure; it only indicates that the Veteran did not make such information available to VA.  Interestingly, the private audiologist calls into question whether the Veteran was even exposed to noise post-service, indicating he "may"have been.  However, the information concerning post-service noise exposure comes directly from the Veteran and the Board has no reason to doubt his honesty on such matters.  Additionally, the private audiologist mischaracterizes the Veteran's hearing protection when hunting; the Veteran has indicated that he "usually" wore hearing protection during hunting, not "hunted with hearing protection" as reported by the private audiologist, who did not examine the Veteran.  The Board additionally observes that the private audiologist's opinion is inherently contradictory concerning the Veteran's left ear hearing loss as she indicates that the Veteran's left ear hearing loss pre-existed service and ostensibly was not aggravated as audiological findings were the same at induction and separation; but yet she still indicates that the Veteran's left ear hearing loss is more likely than not related to noise exposure during active service.  Thus, taking all of this into account, the Board finds the May 2013 VA expert opinion to be the most probative of record.

The Veteran has not specifically claimed disability incurred in service with continuity of symptoms since then, but to the extent this can be inferred, he is competent to do so.  However, left ear hearing loss is shown to have pre-existed service.  On examination in 2008, the Veteran admitted that he did not know when the tinnitus began.  Considering the lack of a clear, consistent claim of when defective hearing and tinnitus began, the Board does not find convincing lay evidence that pertinent disability began in service and continued since that time.  

While the Veteran maintains that he has bilateral hearing loss and tinnitus related to acoustic trauma during his active service, as a lay person he has not been shown to be capable of making medical conclusions, thus, his statements regarding diagnosis and causation are not competent.  A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. at 186; see also Bostain v. West, 11 Vet. App. 124, 127 (1998).  While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise.  See Layno v. Brown, 6 Vet. App. at 465.  And although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he is not competent to provide evidence as to more complex medical questions, as is the case here due to the question of aggravation of a pre-existing disability, the determination of a secondary disability, the lapse in time between the acoustic trauma and the hearing loss in the right ear, and the systemic nature of a hearing loss disability.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Additionally, all of the audiologists have opined that tinnitus is not the result of the Veteran's in-service acoustic trauma but instead is due to the Veteran's bilateral hearing loss.  As a matter of law, service connection cannot be granted for tinnitus on a secondary basis as the Veteran is not service-connected for any disability.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 

The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance of the objective and probative evidence of record is against the Veteran's claims for service connection bilateral hearing loss and tinnitus and his claims must be denied.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.





____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs