Citation Nr: 1326437	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  11-21 071	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel

INTRODUCTION

The Veteran served on active duty from August 1962 to August 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.


FINDINGS OF FACT

1.  The Veteran does not have left ear hearing loss, for VA compensation purposes.

2.  The competent and probative medical evidence of record preponderates against a finding that the Veteran's right ear hearing loss is due to events in active service, and sensorineural hearing loss as an organic disease of the nervous system is not shown to have been manifested to a compensable degree within one year after the Veteran's separation from service.

3.  The competent and probative medical evidence of record preponderates against a finding that the Veteran's tinnitus is due to events in active service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for service connection of tinnitus have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Appropriate notice was provided in January 2010 prior to the initial decision in these matters. 

The duty to assist has also been met and appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA treatment records.  Treatment records from Ear, Nose, and Throat Surgical Associates have been associated with the claims file.  The appellant was afforded a VA medical examination in May 2010.  

Significantly, neither the appellant nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and 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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).  In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Under 38 C.F.R. § 3.385, for the 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

Service treatment records indicate that the Veteran was provided multiple audiometric evaluations.

Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967.  The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units.  The military audiograms in this case must be converted from ASA to ISO units.

Essentially, this means adding 10 decibels to the reported findings at 1000, 2000, and 2000 Hertz, 15 decibels at 500 Hertz, and 5 decibels at 4000 Hertz.

Upon examination at entrance to service the Veteran was found to have 15/15 hearing via the whispered and spoken voice tests.

A hearing conservation examination audiogram dated in August 1962 does not reveal a hearing loss disability pursuant to 38 C.F.R. § 3.385

On examination in April 1964, pure tone thresholds, in decibels, converted to ISO units, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
20
5
-5
LEFT
10
5
0
0
-5

Upon hearing conservation examination in July 1963, pure tone thresholds, in decibels, converted to ISO units, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
15
15
15
10
LEFT
15
10
10
10
5

Upon hearing conservation examination in July 1964, pure tone thresholds, in decibels, converted to ISO units, were as follows:




HERTZ



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

Upon hearing conservation examination in September 1965, pure tone thresholds, in decibels, converted to ISO units, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
20
15
10
LEFT
15
10
10
10
5

Upon examination at separation from service in July 1966, pure tone thresholds, in decibels, converted to ISO units, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
10
0
-5
LEFT
10
0
5
0
0

Service records reveal that the Veteran served as an Auto Flight Control Systems Technician.  Based upon this job description, the RO conceded acoustic trauma in May 2010.

Service treatment records do not reveal any complaints of tinnitus.

Post service treatment records reveal multiple audiometry test results.  In November 2002, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
40
30
30
LEFT
10
10
5
5
5

Speech audiometry was performed but it is unclear whether the Maryland CNC test was utilized.

In November 2002, the Veteran was noted to have hearing within normal limits on the left with the exception of high frequency hearing loss and mild to moderate conductive hearing loss on the right.

In another test dated in November 2002, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
35
30
20
25
LEFT
10
10
5
5
10

Speech audiometry was performed but it is unclear whether the Maryland CNC test was utilized.

The Veteran was noted to have hearing with normal limits on the left with moderate high frequency hearing loss and mild low frequency conductive hearing loss on the right.

In a November 2002 treatment note, it was indicated that there was no recent history of hearing loss or tinnitus.

In November 2003 pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
35
35
40
LEFT
10
10
0
0
5

Speech audiometry was performed but it is unclear whether the Maryland CNC test was utilized.

In November 2003 the Veteran was noted to have hearing with normal limits on the left with a moderate high frequency hearing loss and moderate to severe mixed hearing loss on the right.

The Veteran's spouse, in February 2010, indicated that in the 45 years of their married life she watched her husband's hearing deteriorate.  The Veteran at the same time indicated that his hearing loss began in the 1960's but that he learned to live with it because he did not want to wear a hearing aid.  He indicated that he could not recall when the tinnitus started but also decided to live with the condition.

In May 2010 the Veteran was afforded a VA medical examination.  The Veteran reported that his hearing difficulties dated back to the late 1960's.  He felt it had progressively worsened through the years and that it was worse in the right ear than the left.  He denied a family history of hearing loss.  He also denied any otosurgeries, recent ear infections, or the use of ototoxic drugs.  The Veteran reported constant tinnitus but was unable to recall when he first noticed his tinnitus.  The Veteran was noted to serve in the Air Force from 1962 to 1966 as an electronic mechanic.  He reported noise exposure from hydraulic power units while working in the hangers on the flight line.  Hearing protection was available.  He denied a history of civilian occupational and recreational noise exposure. 

On audiological examination pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
55
55
55
65
LEFT
10
10
15
10
25

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left ear.  Tympanograms revealed normal middle ear pressure and excessive mobility bilaterally.  Acoustic reflex thresholds were absent for both ears.  

The examiner diagnosed the Veteran with moderate to moderately severe mixed hearing loss for the right ear and normal hearing through 4000 Hertz for the left ear.  The examiner commented upon the Veteran's service treatment records noting that they always indicated normal hearing bilaterally.  He reported that there were no complaints of hearing loss or tinnitus in his records.  He denied hearing loss upon separation questionnaire.  Current examination was noted to indicate normal hearing through all ratable frequencies in the left ear.  The right ear was noted to be worse; however, the examiner rendered the opinion that the hearing loss was due to middle ear pathology.  The examiner rendered the opinion that the Veteran's hearing loss and tinnitus are not at least as likely as not related to his military service.

Entitlement to service connection for hearing loss is not warranted.  It is acknowledged that the Veteran's exposure to loud noise in service has been conceded.  At no point during the period on appeal does the Veteran manifest a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385.  Although the Veteran has a right ear hearing loss disability pursuant to 38 C.F.R. § 3.385, the preponderance of the evidence is against a finding that it is related to the Veteran's service.  Although the Veteran and his spouse have reported that he has had progressively worsening hearing loss since separation from service, there is no indication in the record of any complaint, diagnosis, or treatment for any hearing loss disability until November 2002, decades after separation from service.  In fact, in a private treatment record dated in November 2002 it was noted that there was no recent history of hearing loss.  A VA medical examiner rendered the opinion that the Veteran's hearing loss is less likely than not related to the Veteran's military service.  Rather, the examiner stated that the Veteran's right ear hearing loss was due to a middle ear pathology.  As such, entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is not warranted.  Again, there is no complaint, diagnosis, or treatment for any tinnitus in service.  After separation from service, there is no indication of tinnitus until the Veteran's claim dated in December 2009, decades after separation from service.  The Veteran does indicate in February 2010 that his has had tinnitus from an uncertain date; however, in a private treatment note, dated in November 2002, it was reported that there was no recent history of tinnitus.  After examination in May 2010 the examiner rendered the opinion that the Veteran's tinnitus was not related to the Veteran's active service.  Therefore, entitlement to service connection for tinnitus is denied.



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ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs