Citation Nr: 1327410 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 11-10 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1965 to April 1967, to include a tour of duty in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from the December 2010 decision by the Newark, New Jersey, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for bilateral hearing loss and tinnitus. The Veteran requested a Travel Board hearing in front of a Veterans Law Judge (VLJ) to be conducted at the RO which was scheduled for September 2011. The Veteran failed to report for the hearing, without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDINGS OF FACT 1. The Veteran has current diagnoses of bilateral hearing loss and tinnitus. 2. Bilateral sensorineural hearing loss was not first manifested during active duty service or the first post-service year; the competent and credible evidence is against a finding that hearing loss is related to military service. 3. Tinnitus was not first manifested during active duty service; the competent and credible evidence is against a finding that tinnitus is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection of bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection of tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A June 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The June 2010 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also met its duty to assist the Veteran in the development of the claims. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he contended were relevant to the present claims. The Board recognizes that the Veteran did report to an examiner that he received private treatment through work at an airline company and that audiometric testing at that job that showed progressive hearing loss, and that such records have not been associated with the record. The Board notes, however, that the Veteran was notified of the evidence needed to substantiate his claim, the avenues which he might obtain such evidence and the allocation of responsibilities between himself and the VA in obtaining such evidence. The Veteran was an active participant in the claims process by responding to notices, submitting evidence and providing testimony. The Veteran did not provide the authorization and consent forms to pursue private treatment records, nor has he otherwise asked VA to obtain such records. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. 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.") In addition, and as will be discussed in greater detail below, the VA examiner found the most significant evidence of record to be the results of pure tone thresholds at separation, as well as evidence of occupational noise exposure following service, and essentially concluded that the Veteran's current hearing loss was consistent with his post-service employment. Thus, it appears that the Veteran's reports of progressive hearing loss documented during employment exams is entirely consistent with the VA examiner's ultimate finding. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran has been afforded a VA examination conducted in November 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A medical examination is adequate "where it is based upon consideration of the Veteran's prior medical history and examination and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet App. 120, 123 (2007). The report must contain clear conclusions and supporting data, as well as "a reasoned medical explanation" connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The VA examiner considered Veteran's description and history of his symptoms including past private treatment, reviewed prior medical evidence and claim file, conducted a thorough examination and provided a detailed report of the Veteran's condition with a clear opinion and rationale connecting the evidence to her conclusions. Factual Background The Veteran asserts he has bilateral hearing loss and tinnitus caused by his duties in-service. The Veteran's Service Personal Records show his Military Occupational Specialty (MOS) as a supply clerk in the G Battery, 65th Artillery. This unit is known to have conducted highway protection duties on Highway 9 using quad 50 machine gun trucks. In his June 2010 claim he states his hearing loss and tinnitus onset in August 1966 in Ft. Bliss, Texas and subsequently in Vietnam due to firing machine guns. He described firing guns without the use of hearing protection. The Veteran was told to put cigarette filters in his ears which resulted in ineffective hearing protection. In a later June 2010 statement the Veteran asserts that his MOS was a machine gunner and reports that he began wearing a hearing aid over 15 years ago as a result of his hearing loss progression that began in-service. The Veteran's STRs were received from May 1964 through April 1967 and show no signs or complaints of hearing loss disability or tinnitus. The Veteran's entrance examination from April 1965 included an audiogram (puretone thresholds in decibels) which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -10 -5 - -5 LEFT 15 -5 -5 - 5 The Veteran's exit examination from April 1967 included an audiogram (puretone thresholds in decibels) which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 10 LEFT 0 0 0 - 20 No VA treatment records regarding hearing loss exist until June 2010 audio consultation records. The records include the Veteran's subjective complaints of constant tinnitus and hearing loss which he asserts began in-service. The Veteran stated his disabilities began from exposure to 50 caliber machine guns while using no hearing protection. He described temporary hearing loss after exposure to machine gun fire which resulted in recovery the following day. The physician noted the Veteran was exposed to occupational noise as an airline mechanic although hearing protection was provided. The Veteran described that he received yearly hearing screenings at work which showed progressive hearing loss. The Veteran had complaints about his current hearing aids during this consultation. The audio testing resulted in findings of hearing loss consistent with noise exposure. The physician explained the Veteran's hearing of the right ear was within normal limits through 750 Hz but had mild to profound sensorineural hearing loss between 1000 and 8000 Hz. Hearing in the Veteran's left ear was within normal limits at 250 and 500 Hz but had mild to severe sensorineural hearing loss between 750 and 8000 Hz. The physician found the Veteran had good speech recognition ability in both ears. The audiogram (puretone thresholds in decibels) resulted in the following: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 15 40 50 85 100 88 LEFT 15 40 60 70 80 88 A VA audio examination was conducted in November 2010. The Veteran provided his history of noise exposure as a machine gunner inside a quad 50 mounted gun. After exposure to machine gun fire the Veteran again reported having a temporary threshold shift which lasted until the following day. He had positive occupational noise exposure as a tractor trailer driver for 10 years and as a mechanic for an airline for 12 years. He denied recreational noise exposure. The Veteran described constant tinnitus that began over 30 years ago but does not recall a specific incident of onset. The VA examiner diagnosed the Veteran with hearing loss in both ears. The sensorineural hearing loss thresholds were normal to profound in the right ear between 500 and 4000 Hz and normal to severe in the left ear between 500 and 4000 Hz. Tinnitus was diagnosed as constant. The audiogram (puretone thresholds in decibels) resulted in the following: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 15 40 50 85 95 90 LEFT 20 45 55 65 80 88 The VA medical examiner provided an opinion and rationale after review of the claim file and medical records. She opined that tinnitus was as likely as not a symptom associated with hearing loss. She further opined that "Hearing loss and tinnitus IS NOT CAUSED BY OR A RESULT OF in service noise exposure." The VA examiner identified relevant evidence used in formulating her opinion. She described the pure tone tests from enlistment in April 1965 and separation in April 1967 which revealed normal hearing bilaterally at 500, 1000, 2000, and 4000 Hz. The STRs were negative for complaints of hearing loss or tinnitus. She also noted the Veteran's military history was a supply clerk. The rationale provided by the VA examiner was that documented hearing sensitivity was within normal limits during military service, there was no evidence hearing loss or tinnitus complaints or treatment during military service and further, that the disabilities are "more likely" due to positive occupational noise exposure as a mechanic for an airline and as a tractor trailer driver. Service Connection Requirements and Applicable Law Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither tinnitus nor bilateral hearing loss disability is on the list of chronic diseases in the statute or regulation. VA policy, however, is to consider sensorineural hearing loss as an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation. See, e.g., VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a (June 5, 2012) ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a)"). The Board will therefore consider the Veteran's bilateral sensorineural hearing loss to be an organic disease of the nervous system and therefore a chronic disease subject to the chronicity and continuity provisions of 38 C.F.R. § 3.303(b). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, the chronic diseases listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a), including for the reasons noted above 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(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). VA adjudicators are directed to assess both medical and lay evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)(a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002)(tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). A layperson is generally not capable of opining on matters requiring medical knowledge and, specifically is not competent to provide an opinion as to etiology in such cases. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. 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. Hearing Loss The Veteran asserts that he was exposed to significant in-service noise as a machine gunner. Although the Veteran's DD-214 lists the Veteran's MOS as a supply clerk, records also show that he was in an artillery unit. Thus, the Board concedes in-service exposure to significant noise. The evidence establishes the Veteran has a current bilateral hearing loss disability. The November 2010 VA examiner found over four auditory thresholds to be 40 decibels or greater at 1000, 2000, 3000 and 4000 Hz. The reported audiological results meet the requirements of 38 C.F.R. § 3.385 for establishing a current bilateral hearing loss disability. A grant of service connection requires competent evidence to establish a diagnosis and relate the diagnosis to the Veteran's service. Although the evidence of record shows current bilateral hearing loss and in-service exposure to noise, it does not contain sufficient evidence which relates his in-service noise exposure to the current claimed disability. During service, the Veteran is not shown to have had a hearing loss disability in either ear for VA purposes and there are no records of complaints of hearing loss or temporary hearing loss as asserted by the Veteran. Additionally, there is no medical evidence of record demonstrating that the Veteran developed bilateral sensorineural hearing loss as defined by VA under 38 C.F.R. § 3.385 within his first year following his separation from service in April 1967. As such, service connection for hearing loss may not be presumed under the provisions of 38 C.F.R. § 3.309(a). The Veteran has provided positive evidence asserting his hearing loss began during service and that he has continued to have such symptoms following discharge from active service. See 38 C.F.R. 3.303(b). However, although the Veteran's statements of subjective hearing loss are competent, the Board must conclude that they are not credible given that he specifically denied any history of hearing loss or other ear trouble at separation. The Board finds this contemporaneous denial of symptoms to be inherently more credible than contrary statements made decades later in support of a claim for benefits. The Board finds his contemporaneous denial at separation to be particularly persuasive here, as the Veteran did report a history of numerous other symptoms at separation, such as chest pain, headaches, chronic or frequent colds, foot trouble, back pain, and tooth and gum trouble. Thus, this is not a case in which the Veteran could be credibly viewed as reluctant to report symptoms at separation in an effort to avoid complicating or delaying his discharge. Therefore, the Board is unable to afford the Veteran's statements any probative value with respect to the question of whether there has been a continuity of hearing loss symptomotology since service. As discussed, a negative medical opinion has been provided from the November 2010 VA examination. The VA examiner reviewed the claim file, past medical records, the Veteran's description of his history and complaints, and conducted a thorough examination but was unable to link the Veteran's hearing loss disability to his military service. The audiologist provided a reasoned opinion based on a complete review of the record, interview and examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. The VA examiners opinion supported the Veteran's statement of his history regarding occupational noise and placed more significance on this rather than his reported history of machine gun noise exposure given the pure tone thresholds noted at separation. Thus, the Board finds the VA examiner's conclusion that the Veteran's hearing loss is not caused by or a result of in-service noise exposure to be afforded greatest weight. In short, the Board finds that the preponderance of the evidence weighs against the claim. As the weight of the evidence is against the claim; there is no doubt to be resolved, and the claim is denied. Tinnitus Similarly, the weight of the evidence is against service connection for tinnitus. STRs show no in-service diagnosis or complaints. The records show no complaints of tinnitus until June 2010, when the Veteran reported that the condition arose in August 1966 and as a result of exposure to 50 caliber guns. The Veteran is competent to describe the alleged onset of his condition and report symptoms of his condition. However, in the November 2010 examination the Veteran stated he did not recall a specific incident of onset and when asked the circumstances of onset he described it as being over 30 years ago. Such date would place the onset of his tinnitus to over a decade following separation from service. Given the Veteran's inconsistent statements as to onset, the Board must find his own reports as to the date of onset of his tinnitus unreliable. The November 2010 VA examiner provided that the Veteran's tinnitus is not caused by or a result of in-service noise exposure for the same rational as provided for hearing loss, discussed above. The Veteran's lay statements regarding the onset of his tinnitus is the sole evidence in support of the claim. However, the statement lacks credibility, as discussed above, and can be given little or no probative weight. The remaining evidence, including a reasoned medical opinion based on the facts reflected in the file and accepted medical knowledge, is against the claim and is entitled to far greater weight. There is no equipoise in the evidence, and no doubt to be resolved. Service connection for tinnitus is not warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs