Citation Nr: 1327405	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  11-09 316	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for right ear hearing loss.

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Jonathan Tracy, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1980 to August 1984. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 

2.  The Veteran does not have a current left ear hearing loss disability.  

3.  It is at least as likely as not that the Veteran's right ear hearing loss is etiologically related to acoustic trauma during active duty service.

4.  It is at least as likely as not that the Veteran's bilateral tinnitus is etiologically related to acoustic trauma during active duty service.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for left ear hearing loss have not been met.  38 U.S.C.A. § 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

2.  Service connection for right ear hearing loss is warranted.  38 U.S.C.A. § 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

3.  Service connection for bilateral tinnitus is warranted.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties 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).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Notice should be provided before the initial unfavorable adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirement applies to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In the instant case, notice was provided to the Veteran in February 2010, prior to the initial adjudication of the claim in August 2010.  The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  With respect to the Dingess requirements, the February 2010 letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  Accordingly, the duty to notify has been fulfilled. 

VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In this instance, the claims file contains the Veteran's service treatment records, a private audiology examination report, and the Veteran's own assertions in support of his claim.  

In addition, the RO arranged for a VA audiology examination in July 2010 to assess the severity and etiology of the Veteran's hearing loss.  The Board finds that the examination obtained in this case was more than adequate, as it provides findings relevant to determining service connection for hearing loss and tinnitus.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Accordingly, the Board finds that VA's duty to assist has been met.  38 C.F.R. § 3.159(c)(4). 

II.  Legal Criteria, Factual Background, and Analysis

A.  Service Connection Criteria

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131.  Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).  

In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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.

B.  Background and Evidence 

The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as they were incurred due to acoustic trauma during active duty service.  

The Veteran was given an audiology examination when he entered service in July 1980.  There were no problems with his hearing at that time.  The Veteran's Military Occupational Specialty (MOS) was aircraft maintenance specialist.  In his statement dated in April 2011, the Veteran asserts that he was not given hearing protection when performing his duties.  He claims that he began experiencing "ringing" in his ears and bilateral hearing loss during service and those symptoms have continued since that time.  Unfortunately, the Veteran did not receive an audiology examination when he separated from service.      
In August 2009, the Veteran underwent an audiology evaluation by Kaiser Permanente.  The results were:  




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
35
50
55
LEFT
35
30
35
40
45
        
The Veteran's speech reception threshold for his right ear was recorded as 45 dBHL and 35 dBHL for the left ear.  The audiologist also tested the Veteran's speech recognition using the Monitored Live Voice (MLV) Central Institute for the Deaf (CID) W-22 word list.  The Veteran's scores were 88 percent for the right ear and 92 percent for the left ear.  The private audiologist reported that the Veteran had mild to moderate hearing loss in the right ear and mild to mixed hearing loss in the left ear.  The report also noted the Veteran's complaint of bilateral tinnitus.  The private audiologist did not offer any opinion on the etiology of the Veteran's hearing loss or tinnitus.

In July 2010, the Veteran was afforded a VA audiology examination.  The results were:        




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
25
65
LEFT
10
15
15
15
30

The VA examiner also performed the Maryland CNC Test.  The Veteran scored 84 percent for the right ear and 96 percent for the left ear.  Based on these results, the VA examiner diagnosed the Veteran with hearing loss in the right ear, but not the left ear.  The examiner also noted the Veteran's complaint of bilateral tinnitus since his time in service.  However, the examiner concluded that she could not offer an opinion without resorting to "mere speculation" on whether the Veteran's right ear hearing loss and tinnitus resulted from his service.     

C.  Analysis

The record establishes the presence of tinnitus and right ear hearing loss.  In regards to tinnitus, the Board acknowledges that the Veteran is competent to state that he has had ringing in his ears and when the ringing began.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) citing Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue does not require medical expertise, lay evidence may suffice by itself); Falzone v. Brown, 8 Vet. App. 398, 406 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness).  Because tinnitus is "subjective," its existence is generally determined by whether or not the veteran claims to experience it.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002).    

In regards to hearing loss, the VA examination shows right ear hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385.  Therefore, the Board finds that there is current hearing loss in the right ear.  

However, the Veteran claims to have suffered hearing loss in both ears since service.  As a layperson, he is not competent to indicate either that he has a current hearing loss disability, or that it is related to service.  Medical evidence is required.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   

The private audiology examination shows hearing loss in the left ear, but the VA examination does not.  The Board must weigh the probative value of the examinations.  As discussed above, the threshold for impaired hearing is defined by 38 C.F.R. § 3.385.    

While the Veteran's speech recognition threshold was lower at his private audiology evaluation, that testing was not conducted using the Maryland CNC Test insofar as the CID W-22 word list was instead used.  However, 38 C.F.R. § 3.385 specifically requires the Maryland CNC Test.  At the VA examination, the Veteran scored 96 percent in his left ear.  That result has greater probative value since it used the appropriate test.

At the private audiology examination, the left ear is normal until tested at the 3000 Hz level where it reaches 40 decibels and at the 4000 Hz level where it reaches 45 decibels.  The private audiologist diagnosed mild to mixed hearing loss in the Veteran's left ear.  The VA examination is similar in that there is a jump to 30 decibels at the 4000 Hz level, but that is under 40 decibels, the level needed under 38 C.F.R. § 3.385.  

Importantly, the VA examination was conducted specifically to test whether the Veteran meets the requirements of 38 C.F.R. § 3.385.  Based on the foregoing, the Board gives more weight to the VA examination and finds that there is no diagnosis of current hearing loss in the Veteran's left ear.           

This being the case, service connection must be denied for left ear hearing loss.  In the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992).  

Returning to the Veteran's currently diagnosed tinnitus and right ear hearing loss, the Board must next consider whether the Veteran was exposed to acoustic trauma during service that led to his current hearing problems.  In this regard, the Board notes that the Veteran served as an aviation mechanic specialist.  Consequently, the Board concedes it is likely that he was exposed to acoustic trauma in service.

The Veteran was not given an audiology evaluation upon separation.  Further, he did not receive any treatment for hearing problems during service.  For those reasons, the VA examiner concluded that she could not offer an opinion without resorting to mere speculation about whether the Veteran's current hearing problems arose in service.  

Although service records do not document any problems with the Veteran's hearing, he had exposure to acoustic trauma given his MOS.  The Veteran has asserted throughout the pendency of this appeal that he began experiencing hearing problems during service that continue to the present.     

In view of the totality of the evidence, the Board finds that it is at least as likely as not that tinnitus and right ear hearing loss were incurred during the Veteran's service.  This determination is based on the Veteran's credible account of noise exposure during service, the acceptance of his account, his documented current right ear hearing loss, and the determination by the VA examiner that she could not say whether the Veteran's hearing loss was or was not related to service.  The Board finds the evidence to be at least in equipoise and, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for tinnitus and right ear hearing loss is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

1.  Entitlement to service connection for left ear hearing loss is denied.

2.  Entitlement to service connection for right ear hearing loss is granted.

3.  Entitlement to service connection for tinnitus is granted.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs