Citation Nr: 1326864	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-28 760	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus. 


REPRESENTATION

Appellant (the Veteran) is represented by: Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from August 1966 to July 1968.  

This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the RO in St. Louis, Missouri.

In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence.  


FINDINGS OF FACT

1.  All notification and development needed to fairly adjudicate the appeal has been accomplished.

2.  The Veteran was exposed to loud sounds in service.

3.  Hearing loss per se and tinnitus are not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered; however, to the extent that sensorineural hearing loss may be considered an organic disease of the nervous system, symptoms of sensorineural hearing loss were not chronic in service, and were not continuous after service.

4.  Current bilateral hearing loss is not related to service.

5.  Current tinnitus is not related to service.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in service; an organic disease of the nervous system, to include sensorineural hearing loss, is not presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (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 service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The United States Court of Appeals for Veterans Claims (Veterans Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  The determination of whether a veteran has a disability based on hearing loss is governed by 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, 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.

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).

Certain specific conditions are considered chronic diseases under VA Law.  These include organic diseases of the nervous system, but do not include hearing loss per se or tinnitus.  Where an organic disease of the nervous system is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).

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 distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b).

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where 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.  38 C.F.R. § 3.303(b).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of noise exposure in service.  The Board notes that hearing loss and tinnitus are not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered; however, to the extent that sensorineural hearing loss may be considered an organic disease of the nervous system, the Board finds that symptoms of sensorineural hearing loss were not chronic in service, and were not continuous after service.  

At entry into active service in March 1966, pure tone thresholds, in decibels, were as follows:




HERTZ



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

The Veteran asserts that he was exposed to loud sounds in service.  He reported exposure to artillery weapons, heavy equipment, and diesel engines.  This is acknowledged to be true.  In light of the details of the Veteran's infantry service and duty as a light vehicle mechanic, the Board finds that the Veteran was indeed exposed to loud sounds in service.  However, service treatment records reveal that the Veteran's hearing was clinically normal at service separation.  Audiologic findings in February 1968 were as follows:




HERTZ



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

Thus, while noise exposure during service is acknowledged, the results at service separation demonstrate that symptoms of an organic disease of the nervous system, to include sensorineural hearing loss, were not chronic in service.  

After service, there is no record of complaint or treatment for hearing loss until the Veteran filed a claim for service connection in March 2010.  Thus, symptoms of an organic disease of the nervous system did not became manifest to a degree of 10 percent or more within a year of service separation.  

A July 2010 VA audiological examination report reveals pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
45
45
50
55
LEFT
35
40
45
60
70

Speech recognition was 80 percent in the right ear and 88 percent in the left ear.  

While these findings are sufficient to establish a current bilateral hearing loss disability, and while the examiner also diagnosed tinnitus, the VA examiner opined that the military service did not cause hearing loss in either ear based on results at service separation that were slightly better than at service entry, providing a factual basis that provides highly probative evidence against this claim.  The examiner attributed to tinnitus to the bilateral hearing loss.  

There is no medical opinion of record that purports to relate bilateral hearing loss or tinnitus to service.  The July 2010 VA examiner's opinion is persuasive because it includes a rationale that is consistent with the record.  The Veteran's service treatment records reflect that, at service separation, the Veteran's hearing at each frequency examined was as good as, or better than, it was at service entrance.  

The Veteran's representative has argued that there is no valid medical or legal premise for the VA examiner's conclusion that hearing loss needs to be demonstrated at service separation.  The representative cited to Hensley, 5 Vet. App. at 159 for its holding that VA law does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service; when audiometric test results at separation from service do not meet regulatory requirements for establishing disability, a veteran may establish service connection for current hearing disability by submitting evidence that current disability is causally related to service.

While the above is true, the Board distinguishes the facts in this case from those in Hensley.  In Hensley, the claimant's right-ear hearing acuity had worsened during service.  The Board in that case limited its discussion to findings that a right-ear hearing disability was not manifested during service or to a degree of 10 percent during the one-year presumption period following service.  The Veterans Court affirmed the Board's findings as to in-service manifestation of a right-ear hearing loss disability and manifestation within the presumptive period.  The Veterans Court limited its remand to a determination as to whether the claimant's right-ear hearing disability was causally related to in-service noise exposure.  Notably, in Hensley, the record contained private medical reports stating that the claimant's hearing loss was probably due to noise trauma, including exposure to jet-aircraft noise during service.

In this case, the Veteran's hearing at service separation was better than at service entrance, a fact that simply does not support this claim.  The July 2010 VA opinion addressed the claimed relationship to noise exposure in service, and there is no contradictory opinion evidence of record.  The deficiencies found by the Veterans Court in Hensley are not present in this case.

The Veteran believes that his hearing loss and tinnitus are related to service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, establishing the etiology of hearing loss and tinnitus that is temporally remote from the asserted cause, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  While the Veteran is competent to report his symptoms, including the perception of hearing loss and ringing in the ears, he has reported the onset of symptoms in 2000 (see July 2010 VA examination), and does not relate the onset of symptoms to any specific event in service.  As noted above, the Veteran had active service from August 1966 to July 1968, more than nearly forty years ago.   

The Veteran's representative has argued that adequate testing was not conducted at service separation, citing a study recommending testing at the 6000Hz level to identify noise-induced hearing loss.  The Board simply notes that VA law specifies the type of testing that must be conducted to identify hearing loss at service separation and that which constitutes a hearing loss disability for VA purposes.  Under established law, the testing conducted at service separation was not deficient.  

In sum, while the Veteran was exposed to loud sounds in service, the Veteran's hearing was clinically normal at service separation, and was in fact better than it was at service entrance.  A clinician who was aware of his audiological readings at service entry and separation has concluded that the readings do not support hearing loss related to noise exposure in service, and the examiner attributed tinnitus to the Veteran's hearing loss.  Accordingly, the Board finds that the current hearing loss and tinnitus are not related to service.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against each claim, 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).

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In this case, the Veteran submitted his initial claim for service connection for hearing loss and tinnitus in March 2010.  He was sent a letter in March 2010 which advised him of the information and evidence necessary to substantiate his claims.  That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Since the March 2010 letter was sent to the Veteran prior to the initial adjudication of the claims in July 2010, there exists no error in the timing of this notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In short, VA has complied with its duty to notify the Veteran in this case.

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's written assertions.

In addition, the Veteran was afforded a VA examination to address the etiology of hearing loss and tinnitus.  This examination was adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The resulting opinion was accompanied by a rationale that was consistent with the record.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).  

As discussed above, although the Veteran's representative has asserted that the VA examiner's opinion is inadequate, the Board has fund that the opinion adequately addresses the Veteran's assertion that his hearing loss and tinnitus are related to noise exposure during service, and the opinion is not inadequate with the examiner providing a clear and easy to understand reason for the opinion.  Accordingly, there is no basis for a remand for a supplemental opinion.  

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied. 


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs