Citation Nr: 1326613 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-21 812 ) 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 disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served from August 1972 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A review of the Veteran's virtual claims files reveals that all evidence contained therein is duplicative of that contained in the paper claims file. FINDINGS OF FACT 1. Bilateral hearing loss did not manifest during service and has not been shown to be causally related to service, nor was an organic disease of the nervous system manifest within one year of separation from active service. 2. Tinnitus did not manifest during service and has not been shown to be causally related to the Veteran's service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in active service, and an organic disease of the nervous system is not presumed to have been so incurred. 38 U.S.C.A. §§ 101(21), (24), 1101, 1110, 1112, 1113, 1137, 1154 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 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. §§ 101(21), (24), 1110, 1154 (West 2002); 38 C.F.R. §§ 3.6(a), (d), 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, regarding the duty to notify, the Veteran was sent a letter in December 2009, prior to the initial adjudication of the claim, that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. This letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records have been associated with the claims file. The Veteran has never identified any VA or private treatment records for his hearing loss or tinnitus. The Veteran asserted that he was treated by VA in 1975 or 1976, but this was for tuberculosis, and a May 2010 response from the VA medical center in St. Louis, Missouri indicated that there were no records pertinent to the Veteran dating from that time period. In June 2010 and June 2011, the Veteran was afforded VA examinations regarding the claims on appeal. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed in more detail below, the Board finds that both examinations and opinions are adequate, as they are predicated on a review of the claims file, the pertinent and credible evidence of record, and current audiometric findings. In addition, both examiners provided a thorough rationale for the conclusions reached that was based upon the credible evidence of record. The Veteran has contended that both VA examiners misquoted or misinterpreted his reports as to current symptomatology, its history, or his in-service noise exposure. However, the Board finds that the Veteran has been given ample opportunity to report his symptomatology and history to two different VA examiners. As will be explained in more detail below, the Veteran's lay statements have varied during the course of the appeal, and the Board is not able to rely on any of them as credible. After the June 2010 VA examination, the Veteran complained that the examiner misinterpreted his report as to his noise exposure in service. Therefore, the Veteran was afforded a second examination in June 2011 with a different examiner. Again, the Veteran contended that the examiner misreported his lay statements, this time as to their date of onset. The Board finds that the Veteran has been given two opportunities with two different examiners to accurately report his symptomatology and history. The Board has no reason to believe that, if he was to be afforded a third VA examination, he would provide a report as to symptomatology and history that he would be satisfied with. In addition, since the Veteran has provided such varying lay statements, he has shown that he is not a credible historian on this matter. Therefore, a remand to allow the Veteran to provide another history to a VA examiner would be an exercise in futility and is not necessary. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Analysis The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus, as he believes that he developed these disorders due to noise exposure during his period of service. As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disability for which he claims entitlement to service connection is the result of participation in combat with the enemy. He does note that he served near the demilitarized zone in Korea, and his service records show service in Korea. However, his service was not during the Korean War. Furthermore, he does not describe any combat and, instead, indicates that his exposure to noise trauma from weapons fire occurred during training exercises. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As an organic disease of the nervous system, which includes sensorineural hearing loss, is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 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. 38 C.F.R. § 3.385. The results of both the June 2010 and June 2011 VA examinations show that the Veteran has hearing loss that meets these criteria. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards must be converted to ISO-ANSI standards. However, in this case, while the Veteran was tested prior to November 1967, those tests consisted solely of whispered voice, spoken voice, and coin click tests, and all audiometric testing involving measurement of Hertz has been conducted after November 1967. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss and tinnitus. The Veteran's July 1972 enlistment examination reveals the following audiological results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 5 LEFT 30 5 10 10 5 At that time, the Veteran denied a history of hearing loss and ear trouble. Examination of his ears was normal. Upon examination for separation in July 1974, neither audiological nor a whispered voice test were conducted. At that time, the Veteran denied a history of hearing loss and ear trouble. Examination of his ears was normal. In a November 2009 written statement, the Veteran asserted that he was an infantryman during service and that his exposure to acoustic trauma should be conceded. He experienced tinnitus ever since his exposure to acoustic trauma in service. In a December 2010 written statement, the Veteran indicated that he was a light weapons infantryman in an armored cavalry unit on the demilitarized zone in Korea. He has had difficulty with his hearing and the noise in his ears ever since service. In June 2010, the Veteran underwent VA examination. The claims file was available for review. He reported hearing difficulties for the past five years. He claims he can hear noise. However, he has difficulty understanding what was said at times. He had difficulty hearing the television and while speaking on the telephone. The Veteran reported intermittent tinnitus for both ears. He first noticed the "ringing" about 5 years ago and contended that it occurred approximately four to five times per day and lasted for 20-30 seconds at a time. The Veteran denied service noise exposure. Following separation, he was a delivery driver for eleven years. For eighteen years, he worked as a laborer around machinery, and hearing protection was available. He denied a history of civilian recreational noise exposure. On examination, hearing loss disability for VA purposes was found on audiological and Maryland CNC Word tests. The diagnosis was normal hearing at 250Hz, sloping to a moderate sensorineural hearing loss bilaterally. Speech reception thresholds were in agreement with pure tone test results. Word recognition scores were good bilaterally. The examiner indicated that she reviewed the service records. He had normal hearing upon enlistment. An audiogram was not performed upon separation. The Veteran denied service noise exposure, and there were no complaints of hearing loss or tinnitus in his records. He denied hearing loss upon his separation questionnaire. He claimed that he only noticed tinnitus and hearing problems for the past five years, over 30 years past separation. Therefore, the examiner opined that the Veteran's hearing loss and tinnitus were not as least as likely as not related to service. In an August 2010 written statement, the Veteran indicated that he had difficulty with his hearing and tinnitus since he was in service. He stated that he never told the examiner that he had no noise exposure in service. While he was in Korea, he fired all types of weapons for familiarization and to keep his combat skills. In June 2011, the Veteran underwent VA examination. The claims file was available for review. He reported bilateral hearing loss that began ten to fifteen years ago. He denied the presence of tinnitus. The examiner indicated that she asked this question in several ways, and the Veteran consistently denied tinnitus. He reported that he served in the infantry and when asked if he was exposed to loud noise, the Veteran replied, "somewhat." When asked to provide the types of noise he was exposed to, he stated, "maybe gunshots or something like that." The Veteran stated that he was provided with hearing protection. He reported a history of civilian occupational noise exposure after service in the form of machinery while working as a laborer for twenty years with the use of hearing protection. He reported a history of civilian recreational noise exposure while hunting as a teenager without the use of hearing protection. Audiological and Maryland CNC Word tests revealed a hearing loss disability within the definition contained in VA's regulations. The diagnosis was hearing sensitivity within normal limits, sloping to a moderate sensorineural hearing loss bilaterally. Speech reception thresholds were in agreement with pure tone test results. After reviewing the claims file, the examiner noted that the Veteran had normal hearing sensitivity bilaterally at entrance into service. The exit examination did not include a hearing examination. The Veteran denied the presence of hearing loss at entrance and exit. There were no reports of hearing loss in the service treatment records. The Veteran reported that his hearing loss began ten to fifteen years ago, which is 22 to 27 years after service. Therefore, the examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of service. The Veteran denied the presence of tinnitus, and the examiner, therefore, concluded that it was not caused by or a result of service. In an August 2011 written statement, the Veteran indicated that he was asked by the VA examiner if he had these conditions for five or more years. He answered "yes," and stated that he had them starting when he was in service. The examiner stated that he had no service noise exposure, but he worked with weapons on a daily basis as an infantry soldier. The tinnitus and hearing loss got worse five years ago and became more unbearable. First, addressing the matter of an in-service injury, the Board notes that the Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incidence of acoustic trauma. However, the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). He reports that his service duties as an infantryman required him to fire various weapons. The Veteran told the June 2011 VA examiner that he used ear protection. His DD Form 214 confirms that he served in the light weapons infantry. Therefore, as such service would undoubtedly involve some noise exposure, the Board accepts the Veteran's assertion of in-service noise exposure as credible and consistent with his established service. Thus, although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's assertions of in-service noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154. Further, although the competent evidence does not reflect the presence of hearing loss in either ear to an extent recognized as a disability during the Veteran's active or reserve service, the absence of evidence of such hearing loss in service is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Likewise, as noted above, service connection may be granted for tinnitus (or other disability) diagnosed post-service upon a showing of a nexus between that disability and injury (to include noise exposure) or disease in service. See, e.g., 38 C.F.R. § 3.303(d). The Board will first consider the applicability of 38 C.F.R. § 3.303(b) to the Veteran's claim of entitlement to service connection for sensorineural hearing loss. Neither sensorineural hearing loss nor manifestations sufficient to identify the disease entity are shown during service. Rather, the hearing tests taken in active service were normal, and the Veteran denied having any history of ear trouble or hearing loss during that time period. Therefore, while currently-diagnosed sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of sensorineural hearing loss were noted in the service records. A diagnosis of sensorineural hearing loss is first noted in June 2010, which is more than one year following the Veteran's separation from active service. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and sensorineural hearing loss may not be presumed to have been incurred in service. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309. With regard to entitlement to service connection under the provisions of 38 C.F.R. § 3.303(a), there are three opinions of record that address whether the Veteran's hearing loss and tinnitus are related to his service. The relevant opinions are those of the Veteran, the June 2010 VA examiner, and the July 2011 VA examiner. For the reasons stated below, the Board finds that the opinions of the VA examiners are more probative than that of the Veteran. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the provider's knowledge and skill in analyzing the data, and the medical conclusion the provider reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). At the outset, the Board finds that the Veteran has provided varied and inconsistent statements with regard to the history of his hearing loss and tinnitus and his symptomatology. Specifically, he denied any such symptomatology at the time of separation in 1974 but then asserted in recent statements dated in 2009 that these symptoms have existed since service. However, in statements given to the VA examiners, the Veteran reported only a five to fifteen year history of symptoms associated with hearing loss and tinnitus. As noted above, the Veteran has asserted that both VA examiners have misinterpreted his statements. The Board is unconvinced that two different VA examiners misquoted the Veteran. The statements given to the examiners, also, are different from those the Veteran has provided in written statements submitted directly to VA. As such, to the extent that the Veteran asserts that his hearing loss or tinnitus symptoms had their onset in service, the Board finds that these statements are inconsistent with the statements he gave to the VA examiners and contradictory to the contemporaneous evidence of record, when he denied such history at the time of his separation from service. This document is a signed, sworn statement, completed by the Veteran at the time he separated from service. It is more probative evidence on the question of whether he was experiencing hearing loss and tinnitus symptoms at that time than statements made more than 35 years later. Given the Veteran's conflicting statements and his own denials of an ear trouble and hearing loss in service, the Board finds that his statements as they regard the onset of his symptoms are not credible. As such, while the Veteran is certainly competent to report his history of symptoms, particularly as it regards tinnitus, these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002). There is no other evidence to support a finding that the Veteran's symptoms began during service and have been present since that time. For that reason, and because the VA examiners have an expertise in this matter that the Veteran, as a layperson, is not shown or suggested to have, those opinions are more probative than the Veteran's. Both examiners reviewed the claims file, including the service records. The Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). See also Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1995); Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998). The June 2010 and July 2011 VA examiners have provided a valid analysis for the conclusions and opinions given that is consistent with the record. To the extent that the examiners relied on the Veteran's statements, which the Board has determined are not credible, in rendering this decision, the Board finds that any lessened probative value is due to such statements provided by the Veteran. Because he has not provided consistent or credible information, the opinions provided by the VA examiners are as probative as is possible, based upon the evidence of record. Furthermore, while lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau), such statements must be weighed against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, as stated above, the opinions provided by the VA examiners, who are audiologists and have specialized training, expertise, and education on the pertinent matter, are more probative than the bare conclusions and statements made by the Veteran or any other layperson. Thus, the most persuasive opinions on the question of whether there is a nexus between the Veteran's current bilateral hearing loss and tinnitus and his military service are those of the VA examiners, which weigh against the claims. Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss and tinnitus are not causally or etiologically related to his service, to include any noise exposure therein. Accordingly, the claims for service connection for bilateral hearing loss and tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, on these facts, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs