Citation Nr: 1327153	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  09-23 214A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES


1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral tinnitus. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The Veteran had active service from December 1967 to July 1969.  He served in the Republic of South Vietnam from July 1968 to July 1969 and he participated in the Vietnam Counter Offensive, Stage V.  His military occupational specialty was basic field artillery.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied service connection for post-traumatic stress disorder (PTSD), bilateral tinnitus, and bilateral hearing loss.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.  

A March 2010 rating decision granted service connection for PTSD which was assigned an initial 30 percent disability rating, effective April 27, 2007 (date of receipt of the original claim for service connection).  As there is no jurisdiction conferring Notice of Disagreement (NOD) to the downstream elements of effective date or compensation level, no such issues are now in appellate status.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  


FINDINGS OF FACT

1.  The Veteran served in an artillery unit and participated in combat in Vietnam during the Vietnam Conflict.  

2.  Chronic bilateral hearing loss, including sensorineural hearing loss, was first demonstrated many years after active service and is not related to any disease, injury, or incident of service. 

3.  Chronic bilateral tinnitus was first demonstrated many years after active service and is not related to any disease, injury, or incident of service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1110, 1112, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(d), 3.307, 3.309, 3.385 (2012).  

2.  The criteria for service connection for bilateral tinnitus are not met.  38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(d) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes on VA an obligation to notify claimants what information or evidence is needed for claim substantiation prior to an initial unfavorable decision but, if not, any such error may be cured by providing notice followed by readjudication Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  In service connection claims, the VCAA imposes a duty to inform a claimant of all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Also, the VCAA imposes a duty to assist claimants by making reasonable efforts to get needed evidence.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

Here, the RO provided the Veteran with notice of the elements required for service connection and of the respective evidence gathering duties by letter in May 2007, prior to the initial July 2007 adjudication of the claims for service connection for bilateral tinnitus and bilateral hearing loss.  It also provided notice of how disability ratings and effective dates are assigned.  Dingess, Id.  

Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case. 

As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation.  The Veteran's service treatment records (STRs) and personnel records have been obtained.  The Veteran has not received, nor alleged that he has received, postservice VA treatment, evaluation, observation or hospitalization for tinnitus or hearing loss.  

In the Veteran's original claim for service connection, which was received in April 2007, he reported that he had been treated for tinnitus and hearing loss since March 6, 2007, by Dr. S. V.  Received with the original service connection claim was a brief clinical note from that physician dated March 6, 2007.  

The Veteran did not report having received any other treatment, evaluations, or examinations after service for either tinnitus or hearing loss.  He was provided the appropriate VCAA notice in May 2007 and that correspondence included enclosed releases which the Veteran was advised to execute and return if there were any other private clinical records which he wanted VA to assist him in obtaining.  However, he did not execute and return a release to obtain any further records of Dr. S. V.  From this, the Board may only conclude that the Veteran was seen on only one occasion by Dr. S. V., which was on March 6, 2007, for evaluation of hearing loss and tinnitus in preparation for filing his service connection claims in April 2007.  In this regard, the duty to assist is not a one-way street.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence).   

Here, the Veteran has not identified any other postservice VA or private records as having a bearing on the issues before the Board.  

Additionally, the Veteran has been given a VA examination as to the service-connection claims in June 2009, and an addendum was obtained in August 2010.  At the time of the examination his claims file was reviewed prior to the examination and prior to the rendition of a medical nexus opinion by that examiner.  See 38 U.S.C.A. § 5103A(a)(1) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) and Locklear v. Nicholson, 20 Vet. App. 410, 418 - 19 (2006); and 38 C.F.R. § 3.159(c)(4)(i) (2012).

Moreover, the Board finds that the examination and addendum are adequate to evaluate the Veteran's claims for service connection because the 2009 examination included an interview with the Veteran, a brief physical examination, and audiometric testing.  Therefore, the Board finds that the examination report and addendum are adequate to adjudicate the Veteran's service connection claims and no further examination is necessary.  Also, the adequacy of the examination and medical opinions obtained has not been challenged.  As to this, even in light of the duty to independently consider issues suggested by the evidence of record, under Comer v. Peake, 552 F.3d 1362, 1368 (Fed.Cir. 2009), "the Board is entitled to assume the competence of a VA examiner unless the competence is challenged.  Rizzo [v. Shinseki,] 580 F.3d at 1290-91.  The argument that a VA medical examiner's opinion is inadequate is sufficiently close to the argument raised in Rizzo that it should be treated the same."  Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); see also Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Hilkert v. West, 12 Vet. App. 145, 151 (1999).  

As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance.  


Background

The Veteran's service personnel records document that he served in the Republic of South Vietnam from July 1968 to July 1969 and he participated in the Vietnam Counter Offensive, Stage V.  His military occupational specialty was basic field artillery.

The Veteran's STRs are negative for signs, symptoms, complaints, history, treatment, evaluation or diagnoses of tinnitus or hearing loss.  The November 8, 1967, pre-induction examination found no pertinent abnormality.  On audiological evaluation at pre-induction, the Veteran's puretone thresholds, in decibels, at the noted frequencies (in Hertz (Hz)), were as follows: 

Hertz
500
1000
2000
3000
4000
Right Ear
0
0
0
Not tested
0
Left Ear
5
0
0
Not tested
0

(NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  Here, as the evaluation was on November 8, 1967, there is no conversion required).  

In a medical history questionnaire, adjunct to the pre-induction examination, the Veteran reported not having or having had a hearing loss or any ear, nose or throat trouble.  

The July 1969 service separation examination found no pertinent abnormality.  On audiological evaluation at service discharge, the Veteran's puretone thresholds, in decibels, at the noted frequencies (in Hz), were as follows: 

Hertz
500
1000
2000
3000
4000
Right Ear
5
0
0
Not tested
0
Left Ear
0
5
0
Not tested
0

In a medical history questionnaire, adjunct to the service separation examination, the Veteran reported not having or having had a hearing loss or any ear, nose or throat trouble.  

Received with the original April 2007 service connection claim was a brief clinical note from Dr. S. V. which reflected that "AudioScope Screening Results" of March 2007 yielded no responses at the frequencies of 500 and 1,000 Hertz (Hz) in the right ear but yielded responses in the right ear at 2,000 and 4,000 Hz; and in the left ear there was no response at 500 Hz but there were responses in the left ear at 1,000; 2,000; and 4,000.  The diagnosis was tinnitus.  The results of the test were not recorded in decibels.  

In a February 2007 statement from Dr. R. K., in support of the claim for service connection for PTSD, it was reported that while the Veteran had been in an artillery unit in Vietnam, he had been a forward observer during numerous operations against the enemy and was exposed to enemy fire, mortar fire, rocket-propelled grenades, mines, and booby traps.  

On VA examination in June 2009 the Veteran's claim file was reviewed.  It was noted that the Veteran's puretone air conduction thresholds were within normal limits from 500 to 4,000 Hz, bilaterally, both at induction and discharge.  It was noted that he had spent one year in Vietnam.  He now reported having slight hearing difficulty in recent years.  His spouse had noted that he turned the volume of their television up loud.  He had occasional difficulty understanding speech when in a noisy setting.  He reported having a slight, high-pitched, buzzing, tinnitus, which was constant, bilaterally, although he indicated that it was not really a problem.  He reported that this began with his exposure to artillery fire during military service.  He reported having had significant military noise exposure, having started out in artillery and then changed to a forward observer because he didn't like all the noise.  He had worked for several years, and still worked, as a carpenter and handyman.  

On audiological evaluation the Veteran's puretone thresholds, in decibels, at the noted frequencies (in Hz), were as follows: 

Hertz
500
1000
2000
3000
4000
Right Ear
30
30
30
55
70
Left Ear
25
30
35
50
75

The Veteran's discrimination ability was 80 percent in the right ear and 84 percent in the left ear.  A cursory otoscopic examination revealed the canals of his ears were clear.  The diagnosis was a mild to moderate to severe, gradually sloping sensorineural hearing loss, bilaterally, beginning at 500 Hz in the right ear and at 1,000 Hz in the left ear.  

The examiner opined that it was not likely that the current hearing loss and tinnitus were attributable to military noise exposure.  This was based on normal hearing tests at service induction and at discharge, and 40 years of work as a carpenter.  

A January 2010 Memorandum from the Joint Services Records Research Center Coordinator conceded the Veteran's inservice combat stressors, noting that the Veteran's unit had been subjected to rocket, mortar, sapper, and ground attacks.  

On VA psychiatric examination in February 2010 the Veteran reported that while in Vietnam his unit had been subject to frequent enemy attacks.  

In an August 2010 addendum the June 2009 VA examiner addressed whether or not a currently diagnosed hearing loss was related to any threshold shift found on audiometric testing during service.  The opinion, upon reviewing audiometric testing during service was that there was "absolutely no significant threshold shift" during service.  A significant shift was defined as 10 decibels or more.  The only insignificant shifts during service were a 5 decibel shift at 500 Hz in the right ear and in the left ear at 1,000 Hz, with there being an improvement of 5 decibels in the left ear at 500 Hz.  The opinion expressed in June 2009 still stood and for the same reasons expressed at that time, i.e., the hearing thresholds were within normal limits at induction and at separation, and occupational noise exposure was a carpenter for 40 years after military service.  

Principles of Service Connection

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Certain conditions, such as a sensorineural hearing loss, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (a) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) which requires (i) a sufficient combination of manifestations for disease identification, and (ii) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic" and (iii) subsequent manifestations of the same chronic disease, or (b) if chronicity in service in not established, as above, by evidence of continuity of symptomatology which requires that (i) a condition was 'noted' during service, and (ii) evidence of postservice continuity of the same symptomatology, and (iii) medical or lay evidence of a nexus between the present disability and the postservice symptomatology."  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

A chronic disease need not be diagnosed during a presumptive period but no presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the presumptive period.  There must be shown, by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis.  38 C.F.R. § 3.307(c).  

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition, i.e., when its symptoms are capable of lay observation and it may be diagnosed by its unique and readily identifiable features; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson, 581 F.3d at 1316 (Fed.Cir. 2009).  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

Generally the absence of evidence of contemporaneous complaints or treatment for relevant symptoms and disability does not, by itself, constitute substantive negative evidence to be weighed against a claim.  VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded in that record.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.").  However, the Federal Circuit held that "'evidence of a prolonged period without medical complaint can be considered' in making a service connection determination."  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (in which the Federal Circuit affirmed a Board decision that "the preponderance of the evidence" was against a service connection claim taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (No Board err in assigning more probative weight to VA opinions which relied, inter alia, on a record revealing that symptoms of the claimed disability did not begin until decades after service and after a productive working life).  Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both.  

The Board must find whether the preponderance of the evidence is against the claim.  If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed.  38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365. 

Analysis

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.  38 C.F.R. § 3.385 (2012).  

Based on the evidence of record, the Board finds that service connection for bilateral hearing loss, to include a sensorineural hearing loss, and tinnitus is not warranted.  In this regard, the Veteran's STRS are negative for tinnitus and a diagnosed chronic hearing loss, including sensorineural hearing loss, which is a listed chronic disease at 38 C.F.R. § 3.309(a), i.e., an organic disease of the nervous system.  Specifically, the STRs do not confirm that he complained of or was treated for hearing loss or tinnitus.  

In Hensley v. Brown, 5 Vet. App. 155, 159 (1993) the Court stated that: 

[Applicable VA regulations do] not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. . . . Therefore, 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. 

Id. at 159-60.  

The holding in Hensley was that VA may not use audiometric tests from a claimant's separation examination as a per se legal bar on proving service connection.  In Hensley, inservice audiometric testing yielded elevated thresholds at some frequencies and, so, the Court found that even if audiometric testing at service separation did not met the requirements of 38 C.F.R. § 3.385 (establishing hearing loss by VA standards) the service connection claim could not be denied solely on that basis.  Rather, if there were any current hearing loss (by VA standards) it had to be determined whether shifts in auditory thresholds during service represented the onset of any current hearing loss (even if first diagnosed a number of years after service).  

However, the holding in Hensley, Id., places no limitation on the results of inservice audiometric tests being used by medical examiners to reach an opinion, even a negative opinion, and does not hold that VA must disregard an otherwise adequate medical opinion (even if a postservice examiner found audiometric results etiologically relevant).  See Gruen v. Shinseki, No. 09-3603, slip op. (U.S. Vet. App. May 16, 2011) (nonprecedential unpublished memorandum decision); Slip Copy, 2011 WL 1837395 (Table) (Vet.App.) (noting that the Board had conceded inservice exposure to acoustic trauma and the claimant currently had a hearing loss by VA standards).  More to the point, in this case the audiometric testing conducted at the time of the Veteran's service separation examination did not, in the opinion of the 2009 VA examiner, reflect a shift in auditory thresholds at any relevant frequency in either ear.  Thus, while cited in support of the Veteran's claim in the June 2010 VA Form 646, the holding in Hensley, Id., is inapposite.  

Moreover, a fair reading of the 2009 VA audiology examination report, and 2010 addendum, reflects that the audiologist was not positing a belief that service connection is unavailable when a veteran leaves service with normal hearing (which would contravene Hensley).  Rather, the VA audiologist was stating that, according to his knowledge, experience, and judgment, noise induced hearing loss had not been shown to manifest until years after the offending inservice noise had ceased.  Such a statement, rendered by an audiologist, does not contravene Hensley.  

"The American Medical Association defines 'acoustic trauma' as '[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire.'  American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003).  An acoustic trauma can cause permanent hearing loss, but does not necessarily do so.  Id."  Reeves v. Shinseki, No. 2011-7085, slip op. at 10, footnote 7 (June 14, 2012 Fed. Cir.) (not selected for publication); 2012 WL 2105624 (C.A. Fed.).  

Even assuming, and conceding, that the Veteran was exposed to acoustic trauma in combat during service, this is not the same as having sustained the type of injury that causes chronic hearing loss and tinnitus, and having resulting chronic disability.  In other words, even if he was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals, including a sensorineural hearing loss and tinnitus, which were caused thereby.  The Veteran and his representative have not pointed to any such statutory or regulatory presumption to this effect, and the Board is aware of none.  Thus, while not disagreeing that the Veteran sustained acoustic trauma, under the circumstance which he has related, the Board rejects the notion that his current hearing loss, including a sensorineural hearing loss, and tinnitus should be conceded as being due to inservice acoustic trauma.  As to this, 38 U.S.C.A. § 1154(b) provides that in the case of a combat veteran lay or other evidence of service incurrence or aggravation is sufficient proof of the occurrence of an event but this deals with what happened during service and not the questions of either the existence of current disability or a nexus to service.  Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed.Cir. 2009) (finding that 38 U.S.C.A. § 1154(b) does not require controlling weight be given to testimony as to the cause of a combat veteran's death); see also 38 C.F.R. § 3.304(d).  

Significantly, the Veteran did not report having or having had disability or symptoms indicative of chronic hearing loss or tinnitus in a medical history questionnaire at service separation and at the time of his separation examination, clinical evaluation of his ears and audiometric testing were negative.  In short, the audiometric testing at both service entrance and at service separation did not met VA criteria for the presence of hearing loss.  The Veteran's pre-separation physical examination and questionnaire are particularly probative both as to the Veteran's subjective reports and the resulting objective findings.  These examination reports were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment.  Rucker v. Brown, 10 Vet. App. 67, 73(1997).  Moreover, the opinion of the 2009 VA examiner was that any slight difference upon comparison of service entrance and separation audiometric testing in the threshold levels, in decibels, at the relevant frequencies in each ear were not significant.  This is the only competent medical opinion addressing this question and, so, this medical opinion stands unrebutted.  

The 2009 official examiner opined, even after noting the history related by the Veteran of exposure to loud noise during military service, that the current bilateral hearing loss and tinnitus were unrelated to the Veteran's military service due to the passage of time without corroborating evidence of pathology and his postservice occupational exposure to loud noise.   

Furthermore, the Veteran has not even reported that he had sought treatment with VA or any clinical source after service, until shortly before filing his original claim for service-connected VA disability compensation benefits.  And this was after many years of postservice occupational noise exposure, the significance of which the Veteran and his representative now seek to downplay.  See Curry v. Brown, 7 Vet. App. 59, 64 (1994) ("[T]he more contemporaneous the evidence, the greater [the] probative value and credibility than can be attached to that evidence, especially when later-dated testimony [] and statements were generated for pecuniary purposes ... 'memory hinges on recency', earlier statements are generally more trustworthy than later ones).  His first reports of hearing loss and tinnitus, and attempts to link them to inservice acoustic trauma, do not antedate filing is claim in 2007, except by one month, a time approaching almost four decades after his 1969 discharge from active service.  

As to the more recent clinical evidence which reflect that the Veteran relates his current hearing loss and tinnitus to acoustic trauma during military service and continuous hearing loss thereafter, these records do no more than repeat the substance of the Veteran's statements on file.  While recorded by medical personnel, because these records add no other comment, observation, diagnosis or conclusion of a medical nature; rather, they are merely repetitive in that they simply repeat the Veteran's current allegations.  As such, these records have no significant probative value above that of the Veteran's lay statements.  In other words, a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional.  See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (where a history recorded by an examiner had not filtered, enhanced, or added medico-evidentiary value to the lay history through medical expertise).  Moreover, any contention that he has had a hearing loss since military service contrasts with the history he related at the 2009 VA examination of having had only slight hearing difficulty in recent years.  Therefore, the Veteran's statements regarding alleged continuity of symptomatology are inconsistent with the contemporaneous medical records, the Board finds the Veteran's own lay statements are thus not consistent and, so, are not credible. 

Moreover, the Board finds it significant that he had not filed a claim for service connection for hearing loss and tinnitus until 2007, almost four decades after military service.  Since he was well aware of potential entitlement to VA benefits when he received VA education benefits as early as 1972, it would be reasonable to expect that if he had had a hearing loss or tinnitus, or noticed deceased hearing acuity or tinnitus in 1972, that he would at that time have filed claims for service connection for the disorders.  However, he did not and this suggests that he did not have or believe that he had a hearing loss or tinnitus at that time.  Moreover, he has not proffered any reason for not having filed claims for service connection for hearing loss and tinnitus when received VA education benefits in 1972.  

The Board is cognizant that while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board, however, finds in the instant case that the combination of the lack of treatment for hearing loss and tinnitus during service; audiometric testing at service discharge which found no elevated threshold levels at any relevant frequency in either ear; his not having complained of hearing loss or tinnitus at service discharge; his not having sought treatment or disability compensation for hearing loss or tinnitus immediately after service; the fact that his post-service clinical records are negative for any findings of a hearing loss, including sensorineural hearing loss or tinnitus, for many years after his service discharge, to be persuasive evidence against his claims.  

Generally the absence of evidence of contemporaneous complaints or treatment for relevant symptoms and disability does not constitute substantive negative evidence to be weighed against a claim.  VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded in that record.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.").  Here, if the Veteran had in fact had chronic hearing loss or tinnitus since the inservice acoustic trauma it would be reasonable to expect that he would have claimed these when he first had an opportunity for file a claim for VA disability compensation, such as when he received VA education benefits in 1972.  However, he did not.  Also, the Federal Circuit held that "'evidence of a prolonged period without medical complaint can be considered' in making a service connection determination."  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (in which the Federal Circuit affirmed a Board decision that "the preponderance of the evidence" was against a service connection claim taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (No Board err in assigning more probative weight to VA opinions which relied, inter alia, on a record revealing that symptoms of the claimed disability did not begin until decades after service and after a productive working life).  Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both.  

As to the second and third circumstances, delineated in Jandreau, Id., when lay evidence may establish a diagnosis, the Veteran has not reported or stated that he was given a diagnosis during service of any hearing loss or tinnitus, or a diagnosis within one year of service discharge in 1969 of a sensorineural hearing loss (the 2nd circumstance under Jandreau).  His statement that he had hearing difficulties or tinnitus even during military service are simply too vague to suggest, much less establish that he was given a formal diagnosis of a hearing loss or tinnitus during service (the 3rd circumstance under Jandreau).  While the Veteran is certainly competent to testify to symptomatology such as diminished hearing or a ringing of the ears, such symptomatology existing in service is contradicted by the remaining evidence of record.  The Veteran indicated in his original claim of April 2007 that his hearing loss first manifested in 1969.  However, he denied such symptomatology upon separation and informed the June 2009 VA examiner that he only began having slight hearing difficulties in recent years.  While the Veteran did report his tinnitus began with artillery exposure, he denied problems with his ears upon separation in 1969.  As such, the Board finds the Veteran's reports made at the time of separation to be more credible than his recollections now offered approximately four decades later.  

The Veteran may believe that his now chronic hearing loss and tinnitus are related to his active service.  As to this, a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation.  See Jandreau, Id.  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran being untrained and uneducated in medicine is not competent to address etiology in the present case.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a claimant is not competent to provide evidence as to more complex medical questions).  In fact, the complexity of diagnosing the nature and etiology of the Veteran's current hearing loss and tinnitus is shown by the absence of contemporaneous clinical or lay evidence of each until long after service.  In fact, so complex is it that a medical opinion had to be obtained.  Unfortunately, the medical opinion is negative and does not support the claims.  Rather, it is probative evidence against the claims.  

Therefore, the Board finds that because the Veteran's chronic hearing loss, including a sensorineural hearing loss, and tinnitus were first manifested several decades after active service and any acoustic trauma therein, and are not related to any disease, injury, or incident of military service, direct service connection for such disorders is not warranted.  Moreover, as indicated previously, because the allegations regarding continuity of symptomatology are not credible, presumptive service connection for a chronic disease, i.e., sensorineural hearing loss is not warranted.  

Lastly, it was asserted in the June 2010 VA Form 646 that the Department of Defense did not provide audiometric testing above 4,000 Hertz in this case and that the "institute of medicine" had found this to be insufficient for the purpose of assessing the existence of noise induced hearing loss because such a loss was usually demonstrated by testing at higher frequencies.  However, the inservice audiometric testing covered the minimum and maximum frequencies, i.e., from 500 to 4,000 Hz, considered for the purpose of determining whether a hearing loss exists for VA purposes under 38 C.F.R. § 3.385.  Moreover, the absence of testing above 4,000 Hertz in this case is not proof that reporting the results of audiometric testing above that frequency would necessarily have established the existence of a high frequency hearing loss.  Rather, this only allows for speculation of what such testing above 4,000 Hz might have found.  Such speculation does not constitute competent evidence.  

This being the case, the claims must be denied because the preponderance of the evidence is unfavorable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Service connection for bilateral tinnitus is denied.  

Service connection for bilateral hearing loss is denied.  



____________________________________________
B. MULLINS
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs