Citation Nr: 1326817	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-06 243	)	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

J. H. Nilon, Counsel





INTRODUCTION

The Veteran served on active duty from October 1971 to October 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied service connection for hearing loss and tinnitus.

In his substantive appeal, received in March 2011, the Veteran requested a hearing before a Member of the Board at the RO ("Travel Board" hearing).  In April 2011 the Veteran indicated that he preferred to testify by videoconference from the RO, but in May 2011 the Veteran's representative submitted a letter stating the Veteran no longer wanted a hearing before the Board.  Hearing requests may be withdrawn by either the claimant or the claimant's representative; see 38 C.F.R. § 20.704(e) (2012).  The Board will accordingly proceed with adjudication of the appeal based on the evidence of record.


FINDINGS OF FACT

1.  Bilateral sensorineural hearing loss did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service.

2.  A disability manifested by tinnitus is not etiologically related to service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was not incurred in or aggravated by active service and sensorineural bilateral hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

2.  A disability manifested by tinnitus was not incurred in or aggravated by active service.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). 

Complete notification, to include the disability-rating and effective date elements of a service-connection claim, was provided to the Veteran prior to issuance of the rating decision on appeal.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In any event, the Veteran has not identified any prejudice due to error in the content or timing of the notice provided.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The RO has obtained service treatment records (STRs), service personnel records and post-service VA treatment records.  The Veteran has been afforded a VA examination regarding the issues adjudicated below.

The Veteran was advised of his entitlement to a hearing before the Board but declined such a hearing.  Neither the Veteran nor his representative has made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal.  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.

Applicable Legal Principles

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 
 
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, 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.  Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 

The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).   Hensley, 5 Vet. App. 155, 159.

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, 581 F.3d 1313, 1316; 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 1372, 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).  Moreover, the 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).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).




Evidence and Analysis

Service treatment records (STRs) show no documentation of complaint during service of either hearing loss or tinnitus.  The Veteran had an induction physical examination in October 1971 in which his audiometric scores were as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
10
 0
0
  NR
5
NR
LEFT
15
 0
5
  NR
10
NR

The Veteran had a separation examination in July 1974 in which his audiometric scores were as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
10
 10
5
  5
5
5
LEFT
10
 10
5
 10
25
10

Comparison of the two reports appears to indicate the Veteran had some degree of hearing loss during service in both ears, and especially in the left ear.  However, no hearing loss disability is demonstrated by these findings.  

VA primary care clinic (PCC) notes dated in December 2005, September 2006, March 2007 and September 2007 show the Veteran presented for routine treatment.  Review of systems (ROS) on those occasions showed complaints of tinnitus were denied.

The Veteran had a VA audiological consult in June 2009, in which he complained of constant, loud, bilateral tinnitus for several years.  He reported a history of military noise exposure consistent with small arms firing and civilian noise exposure associated with landscaping/farming equipment and sporting clay shooting (right-handed) with hearing protection.  Audiometric scores were as follows:




HERTZ

500
1000
2000
3000
4000
6000
RIGHT
  15
   10
  10
   45
 45
  35
LEFT
  20
   10
  15
   65
 65
  60

The audiologist's impression was mild high-frequency sensorineural hearing loss (SNHL) in the right ear and moderate high-frequency SNHL in the left ear, with asymmetry consistent with noise exposure history.

In his claim for service connection, received in September 2009, the Veteran asserted that hearing loss and tinnitus began in 1971.  He denied any treatment since service.

The Veteran submitted a Statement in Support of Claim in October 2009 stating that during service he was working in a motor pool that adjoined a generator shop; in or around August 1973 a generator blew up with a loud noise, resulting in subsequent ringing in the ears.

The Veteran had a VA audiological evaluation in November 2009, performed by an audiologist who reviewed the claims file.  The Veteran reported history of noise exposure during service in the form of noise from an explosion; he also reported that as a civilian he drove a truck for 15 years.  He complained of constant bilateral moderate high-pitched tinnitus that he first noted in 1972 and attributed to the noise of an explosion.  The Veteran's puretone thresholds were as follows: 


HERTZ

500
1000
2000
3000
4000
AVG
RIGHT
  20
   10
 10
   45
 50
  29
LEFT
  20
   10
 10
   60
 60
  35


Speech recognition was 90 percent in the right ear and 100 percent in the left ear.  The audiologist diagnosed moderate high-frequency hearing loss with good speech recognition in the right ear and moderately severe hearing loss with excellent speech recognition in the left ear.  The examiner noted the Veteran had an audiometric evaluation at separation from service that was normal, and no complaints of hearing loss or tinnitus are shown in STRs.  There was also no mention in STRs of the explosion cited by the Veteran and nothing in the file to indicate the Veteran was exposed to excessive noise in service.  Accordingly, based on available information it was concluded it was not likely the Veteran's claimed tinnitus and hearing loss are related to service.

The RO denied service connection for hearing loss and tinnitus in the December 2009 rating decision on appeal.  In January 2010 the Veteran submitted a Notice of Disagreement (NOD) asserting that after the generator blew up in September 1973 he sought treatment at the troop medical clinic.

Based on the Veteran's assertion of having been treated in service following the generator explosion, the RO submitted a request to the National Records Personnel Center (NPRC) for unit documentation such as morning reports that would reflect the Veteran as having gone on sick call.  As shown in a December 2010 Formal Finding of Inability to Corroborate Acoustic Trauma Incident, there was no documentation in unit records of such an event or such treatment.  The document stated that morning report records were kept during that time period, and sick call attendance should have been documented had it occurred.

Review of the evidence above shows the Veteran to be competently diagnosed with bilateral SNHL to a degree considered to be disabling within VA criteria, as well as with tinnitus.  Accordingly, the first element of service connection - medical evidence of the claimed disability - is met.

However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  

Review of the STRs does not show the Veteran to have had hearing loss to a degree considered disabling under VA criteria (per 38 C.F.R. § 3.385) during service or at the time of discharge from service.  There is also no indication the Veteran had hearing loss to a compensable degree within the first year after discharge from service.  Accordingly, hearing loss disability is not shown to have been manifest during service or to a compensable degree within the first year after discharge from service, as to establish service connection on a direct or presumptive basis. 

The question accordingly arises as to whether an in-service acoustic trauma produced a subsequent hearing disability; i.e., a delayed onset disability.  There is no competent evidence that suggests this to be the case or that it is even medically possible, and indeed the only competent opinion addressing whether the Veteran's current disability is related to service is against that proposition.  The VA audiological evaluation in November 2009, states that the Veteran's claimed hearing loss is not related to service.  

The Board notes at this point that the VA audiologist was demonstrably fully informed of the pertinent factual premises of the case and also provided a fully-articulated opinion supported by reasoned analysis.  The opinion of the audiologist is accordingly probative under the criteria of Nieves-Rodriguez.

The Board also acknowledges that the audiometer results obtained at the Veteran's separation examination appear to show diminished hearing acuity when compared to the induction examination.  However, the Board is not competent to make any inferences as to medical etiology, or degree of disability as to a claim for benefits, without a solid foundation on the record, grounded in medical evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991).  The examining audiologist in this case specifically considered the induction and separation examinations but found nonetheless that the Veteran's hearing loss was not related to service; such finding is not controverted by any other medical opinion of record.  

Accordingly, service connection for hearing loss is denied.  

Regarding tinnitus, the Veteran has not provided a consistent history as to its onset or duration, and therefore his contentions in this regard are not deemed credible.  The Veteran's account of tinnitus during service and continuous since service is not credible because it is inconsistent with the STRs and post-service treatment records.  The Veteran's account of having been treated in service following the generator explosion is inconsistent with the STRs and service personnel records, neither of which shows such treatment.  Further, the Veteran's account of tinnitus ever since discharge from service is inconsistent with his denial of tinnitus during PCC treatments during the period December 2005 through September 2007.  As such, his history in this regard is not accorded any probative value.  The remaining evidence shows the onset of tinnitus in recent years, with the VA examiner in 2009, concluding it was not likely related to service.  No other competent, credible evidence indicates otherwise.  Accordingly, service connection for tinnitus is denied.  

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs