Citation Nr: 1326550	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  10-21 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. Conner, Counsel



INTRODUCTION

The appellant served on active duty from July 1969 to January 1972.  He served in Vietnam from January 1970 to November 1970 and is the recipient of multiple awards and decorations, including the Combat Infantryman Badge.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied service connection for bilateral hearing loss and tinnitus.  

In connection with his current appeal, the appellant requested and was scheduled for a personal hearing before a Veterans Law Judge in Washington, D.C.  In a February 2013 statement received prior to the hearing, however, the appellant indicated that he wished to withdraw his hearing request.  Accordingly, the Board will proceed with consideration of his appeal based on the evidence of record.  38 C.F.R. § 20.702(e) (2012) (providing that a Board hearing request may be withdrawn by an appellant at any time before the date of the hearing).  


FINDINGS OF FACT

1.  A hearing loss disability did not manifest during the appellant's active service, nor was sensorineural hearing loss manifest to a compensable degree within one year of separation from that period of active service, and the most probative evidence indicates that it is not as likely as not that the appellant's current bilateral hearing loss is related to his active service or any incident therein, including noise exposure.

2.  Tinnitus did not manifest during the appellant's active service or for many years thereafter, and the most probative evidence indicates that the appellant's current tinnitus is not as likely as not related to his active service or any incident therein, including noise exposure.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in active service, nor may sensorineural hearing loss be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Tinnitus was not incurred in active service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA.  In a January 2007 letter issued prior to the initial decision on his claims, VA notified the appellant of the information and evidence needed to substantiate and complete his claims for service connection for hearing loss and tinnitus.  He was also informed of what part of that evidence he was to provide and what part VA would attempt to obtain for him.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012).  In addition, the January 2007 letter included the additional notification requirements imposed by the U.S. Court of Appeals for Veterans Claims (Court) in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Neither the appellant nor his representative has argued otherwise.  The appellant's service treatment records are on file, as are all available post-service clinical records which the appellant has identified and authorized VA to obtain.  38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2012).  

The appellant was also afforded VA medical examinations in connection with his claim in February 2007 and October 2007.  38 C.F.R. § 3.159(c) (4) (2012).  The Board finds that the October 2007 examination is adequate.  The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records.  The examiner also provided a rationale for the opinion rendered.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the appellant nor his representative has argued otherwise.  Sickels v. Shinseki, 643 F3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2012).

For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issues now being decided.


Factual Background

The appellant's service treatment records show that, at his July 1969 military enlistment medical examination, his ears were examined and determined to be normal.  An audiological evaluation was performed and revealed pure tone thresholds, in decibels, as follows:




HERTZ



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

The appellant's in-service treatment records are entirely silent for complaints or findings of hearing loss, decreased hearing acuity, or tinnitus.  

At his January 1972 military separation medical examination, the appellant's ears were examined and determined to be normal.  An audiological evaluation was performed and revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
--
0
LEFT
0
0
0
--
0

In connection with his January 1972 military separation examination, the appellant completed a report of medical history in which he denied having or ever having had hearing loss or ear trouble.  

In September 2006, the appellant filed an original application for VA compensation benefits seeking service connection for bilateral hearing loss and tinnitus.  

In support of his claim, the appellant submitted October 2006 statements from two individuals who indicated that they had had known the appellant for decades.  Both individuals noted that the appellant had served in Vietnam and indicated that they had noticed that the appellant's hearing acuity had been worsening over the years.  

The appellant also submitted private audiometric examination reports dated in March 2005 and May 2006, which both showed bilateral hearing loss.  In the May 2006 audiometric report, the audiologist noted that the appellant had a history of several acoustic traumas in the military.  The impressions included tinnitus; right moderate to profound hearing loss, conductive at 500 and 1,000 Hertz, and sensorineural in the high frequencies; and left air bone gap hearing loss at 500 Hertz, and sensorineural in the mid and high frequencies.  

The appellant was afforded a VA medical examination in February 2007 at which time he reported gradually declining hearing acuity over the past few years.  He reported that, during his military service, he had encountered three explosions, but noticed no change in his hearing immediately afterwards.  He indicated that he had been working in construction for the past 21 years during which time he had had noise exposure from heavy equipment and diesel engines.  The appellant denied having a history of ontological problems.  He reported tinnitus, but was unable to recall the circumstances of onset.  Audiological testing showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
55
90
105
LEFT
40
30
45
95
105

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 88 percent in the left ear.  The diagnosis was audiological findings suggestive of mild to profound mixed hearing loss, bilaterally.  

In a February 2007 statement, the appellant recalled that, during his tour of duty in Vietnam, he had been sitting on an armored personnel carrier that hit a landmine.  The soldier he was sitting next to on the vehicle sustained a perforated eardrum.  The appellant also recalled that, shortly before service separation, he was told the Army wanted to test his hearing, but he refused stating he would visit a VA hospital after service.  He indicated that he failed to do so.  

The appellant again underwent VA medical examination in October 2007.  The appellant again reported having noticed gradually decreasing hearing acuity over the past few years.  He also reported a bilateral "cricket" tinnitus.  The appellant reported a history of military noise exposure, including three explosions.  He also reported a twenty-one year history of post-service occupational noise exposure while working in construction with heavy machinery.  Audiological testing showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
65
90
105
LEFT
40
40
55
85
100

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear.  After examining the appellant and reviewing the claims folder, the examiner diagnosed the appellant as having a moderate to profound mixed hearing loss bilaterally.  She indicated that, in light of the appellant's reported history and medical records, including normal hearing acuity at service separation across all frequencies, his current hearing loss and tinnitus were more likely due to his 21 years in construction and less likely due to military noise exposure.  

In a May 2009 statement, the commander of the appellant's local Veterans of Foreign War Post indicated that he and other members had noticed that the appellant's hearing acuity had progressively worsened over the years.  

A July 2009 private audiological evaluation showed continued moderate to profound mixed hearing loss bilaterally.  The audiologist noted that the sensorineural component of the appellant's hearing loss may be due to his history of noise exposure.  

In a July 2009 report, a private physician noted that the appellant had presented with complaints of hearing loss and recurrent cerumen impaction, as well as a history of exposure to tractors and other heavy equipment for several years.  The assessments included bilateral hearing loss, mixed, primary; impacted cerumen; and, bilateral chronic otitis media.  The physician noted that the appellant had a history of significant noise exposure both in the military and thereafter in his occupation working around heavy machinery.  The physician indicated that the appellant had mixed moderate to profound bilateral hearing loss and that the sensorineural component of his hearing loss "could be" related to noise exposure in service.  


Applicable Law and Regulations

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain enumerated diseases, including as an organic disease of the nervous system like sensorineural hearing loss, may be also be established on a presumptive basis under 38 C.F.R. § 3.303(b).  To establish service connection under this provision, there must be:  evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology after service.  The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In the case of any Veteran who has engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation.  Every reasonable doubt shall be resolved in favor of such Veteran.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012).

In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  See also Hensley v. Brown, 5 Vet. App. 155 (1993).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Analysis

The appellant seeks service connection for bilateral hearing loss and tinnitus, which he argues were incurred in service as a result of noise exposure.  After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus.

As set forth above, the appellant is a combat Veteran who reports noise exposure during active service, including from three explosions during his tour of duty in Vietnam.  The Board finds the appellant's reports of in-service noise exposure to be credible and consistent with the circumstances of his service.  38 U.S.C.A. § 1154(b).  

That an injury, such as noise exposure or acoustic trauma, occurred in service, however, is not enough to establish service connection.  Rather, there must be chronic disability resulting from that injury.  In this case, the record shows that the appellant did not develop a chronic hearing loss disability or tinnitus during active service.  Indeed, the appellant's hearing acuity was tested in January 1972, at the time of his separation from active service, and the results were normal.  Additionally, in connection with his January 1972 military separation examination, the appellant completed a report of medical history in which he denied having or ever having had hearing loss or ear trouble.  The Board also notes that the record contains no indication, nor has the appellant contended, that sensorineural hearing loss manifested to a compensable degree within one year of separation from active service in January 1972.  See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.  

Here, the Board notes that it has considered the appellant's statement to the effect that he was told the Army wanted to test his hearing at separation, but he refused.  To the extent the appellant may be contended that his hearing loss may have been present at separation, the Board finds that the contemporaneous audiometric findings at separation, as well as the VA medical opinion referenced above characterizing these in-service audiometric measurements as representative of normal hearing acuity, are far more probative as to the presence or absence of a hearing loss disability at service separation.  See 38 C.F.R. § 3.385 (specifically defining the specific audiometric findings necessary to constitute a hearing loss disability); Lendenmann v. Principi, 3 Vet. App. 345, 349 (noting that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).

The Board also observes that, at his military separation medical examination in January 1972, the appellant completed a report of medical history on which he specifically denied having or ever having had hearing loss.  The Board assigns far more probative weight to the contemporaneous record than to any current recollections that the appellant had hearing loss in service or that his hearing acuity was not tested at service separation.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that the contemporaneous evidence has greater probative value than history as reported by a claimant).  

Although the most probative evidence establishes that the appellant's hearing loss and tinnitus were not present during his period of active service or manifest to a compensable degree within one year of separation from such service, service connection may nonetheless be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Hensley v. Brown, 5 Vet. App. 155, 158-60 (1993).  In this case, however, the record preponderates against finding that the appellant's current hearing loss and tinnitus are causally related to his active service.

As set forth above, in October 2007, a VA audiologist concluded that, given the evidence of record, the appellant's current hearing loss and tinnitus were more likely due to his 21 years of noise exposure in construction and less likely due to his military noise exposure.  The Board finds that this medical opinion evidence is persuasive and assigns it great probative weight.  The opinion was rendered by an audiologist, a medical professional with the specialized knowledge particularly probative to the matter at issue in this case.  Moreover, the Board notes that the examiner based her opinion on a review of the appellant's claims folder and noise exposure history and provided an explanation for her conclusion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions).  The basis for the examiner's conclusion is apparent from a review of the evidence and is consistent with such evidence, particularly with the express notation by the examiner of the appellant's noise exposure history and service treatment records noting normal hearing acuity at separation.  Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010).  Because he is a layperson, the appellant's representation that he has hearing loss and tinnitus which are etiologically related to in-service noise exposure does not outweigh the findings of the VA audiologist.

The Board has carefully considered the July 2009 opinion from the appellant's private physician who indicated that the appellant had mixed moderate to profound bilateral hearing loss and that the sensorineural component of his hearing loss "could be" related to noise exposure in service.  It is well established, however, that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim.  See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus).  Given the applicable standard of proof, the Board finds that the private physician's statement is insufficient to support an award of service connection.  In any event, it does not equal or outweigh in probative value the VA audiologist's clear conclusion that the appellant's current hearing loss and tinnitus are less likely than not related to service.

Similarly, another July 2009 private audiological evaluation report noted that the sensorineural component of the appellant's hearing loss may be due to his history of noise exposure.  However, the audiologist did not specify whether he was referring to the Veteran's military noise exposure or post-service noise exposure.  Moreover, the phrase "may be due to" is also speculative and would not be sufficient to support a claim for service connection.

In summary, the Board finds that the most probative evidence shows that the appellant's current hearing loss and tinnitus did not have manifest during active service and that sensorineural hearing loss did not manifest to a compensable degree within one year of service separation.  The Board also concludes that the most probative evidence shows that the appellant's current hearing loss and tinnitus are not causally related to his active service or any incident therein, including noise exposure.  For these reasons, the preponderance of the evidence is against the claims of service connection for bilateral hearing loss and tinnitus.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).



ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs