Citation Nr: 1327478	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  09-30 174	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel


INTRODUCTION

The Veteran served on active duty from March 1974 through October 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for bilateral hearing loss and tinnitus.  

The substantive appeal reflects that the Veteran requested that a hearing before a Board member be scheduled in this matter.  However, in September 2009, the Veteran advised VA that he wished to withdraw his hearing request.  Neither the Veteran nor his representative has made a renewed request for a new hearing.

In an April 2011 decision, the Board denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus.  In that same decision, the Board also denied claims of entitlement to service connection for hyperplasia of the prostate; sleep apnea, claimed as removal of nasal polyps from the nasal passage, breathing problems, and a nasal condition; hypertension, and a kidney and bladder condition; all of which were also preserved for appeal in the Veteran's August 2009 substantive appeal.

Subsequently, the Veteran appealed the Board's April 2011 decision to the United States Court of Appeals for Veterans Claims (Court).  In an August 2012 Memorandum Decision, the Court vacated the Board's denials of service connection for bilateral hearing loss and service connection for tinnitus; however, otherwise affirmed the Board's April 2011 decision.  Accordingly, the issues of service connection for bilateral hearing loss and service connection for tinnitus are returned to the Board for further proceedings consistent with the Court's Memorandum Decision.

In February 2013 and May 2013 the Board remanded these issues or further development. The requested development has been substantially complied with and the claim is ready for appellate review.  


The issues of entitlement to service connection for non-Hodgkin's lymphoma, claimed as secondary to herbicide exposure; service connection for a right knee disorder; and whether new and material evidence has been received to reopen a claim for service connection for a bilateral leg condition, to include aching, numbness, and tingling have been raised by the Veteran's January 2013 VA Form 21-4138, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The issues were referred to the RO in February 2013.  It appears the RO has not adjudicated the issues. Therefore, the Board does not have jurisdiction over them, and they are re-referred to the AOJ for appropriate action. 

The Board has considered the Veteran's Virtual VA file and has considered any relevant records contained therein in the decision below. 


FINDINGS OF FACT

1.  It has not been shown by competent and probative evidence that the Veteran's pre-existing bilateral hearing loss was aggravated in service. 

2.  It has not been shown by competent and probative evidence that the Veteran incurred tinnitus in service, or that tinnitus is otherwise attributable thereto. 


CONCLUSIONS OF LAW

1.  Service connection for bilateral hearing loss is not established.  38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 

2. Service connection for tinnitus is not established.  38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant.  See 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The RO provided the appellant pre-adjudication notice by letters dated in December 2007, June 2008 and September 2008. 

VA has obtained the Veteran's service treatment records, personnel records, assisted the Veteran in obtaining evidence, afforded the Veteran a physical examination and obtained medical opinions as to the etiology of bilateral hearing loss and tinnitus.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. 

The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Court has determined that the medical opinion contained in the March 2008 VA audiological opinion was inadequate.  Moreover, pursuant to a Board remand of February 2013, a new medical opinion was obtained in March 2013.  However, that opinion was deemed inadequate by the Board.  An additional opinion was obtained in June 2013 and the Board finds the opinion is adequate for appellate review.  It is predicated on a substantial review of the record and medical findings and considers the Veteran's complaints and symptoms.  Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues of service connection for bilateral hearing loss and tinnitus addressed in this decision has been met.  38 C.F.R. § 3.159(c)(4). 

VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. 

Legal Criteria and Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012).  Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection may also be granted for bilateral hearing loss if manifested to a compensable degree within one year of separation from service provided the rebuttable presumption provisions of § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  Evidence which may be considered in rebuttal of service incurrence of a disease listed in 38 C.F.R. § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease.  38 C.F.R. § 3.309(d). 

While hearing loss disability is not a disease listed in 38 C.F.R. § 3.309(a) , organic diseases of the nervous system are listed as a disability subject to presumptive service connection.  As the Veteran's hearing loss disability has been described as sensorineural in nature, the Board will consider whether service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307, 3.309 is warranted. 

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Impaired hearing will be considered to be a disability for VA compensation purposes only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).  Regulation provides that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports,"  38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id. at (b)(1). 

However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease."  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012).  For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  38 C.F.R. § 3.306(b) (2012).  Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Upon entrance to service the Veteran denied ever having had ear trouble or hearing loss.  See January 1974 report of medical history.  Examination of the ears and drums was normal upon clinical evaluation at entrance.  See January 1974 report of medical examination.  Upon audiologic evaluation at entrance, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
35
N/A
30
LEFT
20
30
25
N/A
40

A review of the Veteran's service treatment records does not disclose the presence of a separation audiogram.  However, he denied having ever had ear trouble or hearing loss at discharge.  See November 1974 report of medical history.  The Veteran's DD Form 214 provides his discharge code as AFM 39-10, (SPD KDB), i.e. dependency or hardship. 

Following his discharge, the earliest documented clinical evidence pertaining to hearing loss and tinnitus appears in a September 2000 VA audiology consultation note.  At this time, the Veteran reported for a hearing evaluation stating that his hearing had been decreasing since his tour of duty in the military.  No history of middle ear pathologies was noted at this time.  The Veteran did report a history of dizziness and balance problems approximately 4 to 5 years prior due to an inner ear infection, but no such symptoms since then.  He also reported a history of periodic bilateral tinnitus with a significant history of noise exposure.  Bilateral mild to severe sensorineural hearing loss from 250 to 8000 Hz, with the exception of within normal limits at 500 Hz on the right, was assessed at this time.  Subsequent VA records note that the Veteran was subsequently fitted with hearing aids and that he was followed by VA audiology. 

Of record is a November 2007 VA audiological evaluation note.  This note discloses that comprehensive air/bone conduction testing revealed a bilateral mixed hearing loss with a mild to severe impairment in the right ear and moderate to severe in the left ear.  Tympanograms were within normal limits at this time and word recognition scores were good.  The results of the testing were discussed with the Veteran and he understood the need for medical follow-up due to mixed hearing loss and symptoms consistent with Eustachian tube dysfunction. 

In a January 2008 statement the Veteran related that he started to experience bilateral hearing loss and tinnitus "shortly" after active duty.  He related that these conditions had steadily worsened over the years to the point that he was provided hearing aids "circa 2002" and that this "condition" had further deteriorated until late 2007 when hearing aids were deemed inadequate and that the he was then being "fitted for new devices."  He also reported that his tinnitus had steadily increased in tone and severity. 

Of record is a January 2008 VA record pertaining to an otolaryngology consultation.  At this time, the Veteran complained of progressive bilateral hearing loss of "the past several years" as well as intermittent tinnitus.  No history of ear infections was noted at this time. 

In furtherance of substantiating his claim, the Veteran was provided a VA audiologic examination in March 2008.  The report associated with this examination notes that the claims file was reviewed by the examiner.  At this time, the Veteran reported that during his period of service he worked on B-52 bombers and reported noise exposure from aircraft engine noise on a regular basis.  He stated that he wore headset type hearing protection whenever he was around the aircraft.  As a civilian, the Veteran related that he worked for 3 to 4 years following his discharge in the Department of Forestry and Soil Conservation performing various duties ranging from planting trees to watering livestock for farmers.  He denied any excessive noise exposure in this capacity.  For the past 30 years, the Veteran reported that he worked in an auto body repair shop and reported noise exposure from the use of grinders and other tools used in the trade.  He related that hearing protection was sometimes used in his work in this regard.  He denied any recreational noise exposure.  He reported a history of recurrent intermittent tinnitus, which he first noted several years ago. 

On VA audiological testing at this time, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
45
50
50
60
65
LEFT
50
55
50
65
70

Pure tone averages were 56.25 for the right ear and 60 for the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 72 percent in the left ear.  These audiometrics clearly meet the threshold for considering hearing loss a disability for VA purposes.  See 38 C.F.R. § 3.385.  The examiner assessed sensorineural hearing loss at all test frequencies with intermittent bilateral tinnitus reported. 

The examiner noted that the Veteran's enlistment physical, dated in January 1974, demonstrated a mild bilateral hearing loss at 500 to 4000 Hz. The examiner also noted that an automatic Rudmose audiogram dated in March 1974 also demonstrated that the Veteran continued to show a mild hearing loss at 500 to 400 Hz on the right, dropping to a moderate level loss at 6000 Hz.  With respect to the left ear, the examiner noted that the Rudmose audiogram demonstrated a mild loss at 1000 to 3000 Hz, dropping to a moderate level loss at 4000 to 600 Hz.  The examiner stated that these two hearing examinations demonstrated that the Veteran entered the service with a pre-existing hearing loss in both hears. 

The examiner concluded that the current change in the Veteran's pre-existing hearing loss was due to a natural progression of the loss over the course of 34 years along with a combination of occupational noise exposure, as opposed to aggravation of the hearing loss from 7 months of military noise exposure with the use of hearing protection.  The examiner also noted that the first documentation of intermittent tinnitus was found in 2000.  Accordingly, the examiner stated that it was their opinion that the current bilateral hearing loss and tinnitus were less likely than not caused or aggravated by the Veteran's service. 

In May 2008 the Veteran provided a statement in which he offered his reasons for disagreeing with the RO's denial of his claims for service connection of bilateral hearing loss and tinnitus.  With respect to bilateral hearing loss, he noted that VA indicated that he had a mild hearing loss when inducted.  He related that through the years the condition had continuously worsened.  He attributed this worsening to exposure to loud nose during his period of service.  He explained that he was not aware, and had not been advised, that he could have filed a disability claim for bilateral hearing loss and tinnitus.  He related that if he had known he could have done so he "would have done it years ago." 

In an August 2012 Memorandum Decision, the Court found that the March 2008 examiner's opinion regarding a nexus to service was inadequate as to both issues.  

A new opinion was obtained in March 2013.  In a Board remand of May 2013, the Board found that the opinion was inadequate as to both issues and ordered that a new opinion be obtained.  

A new opinion was obtained in June 2013.  The examiner stated that after re-reviewing the Veteran's file and the Veteran's history of noise exposure as well as protection worn it is her opinion that there is no evidence that the Veteran's hearing was decreased while periodically wearing helmet type hearing protection while in service.  She went on to state that the Veteran's hearing loss is likely due to years of auto body noise exposure and possibly a decrease due to the inner infection he reportedly had in 1995 or 1996.  She noted there is no evidence the Veteran sought treatment for hearing loss for 26 years after separation from service or until 2000.  Based on the lack of evidence of any change in the Veteran's hearing during his seven months in service, the period use of hearing protection while in service, the self reported inner ear infection with no evidence it did not contribute to the Veteran's current loss, and the Veteran's self-reported 30 years of auto body repair tool noise exposure, it is her opinion that the Veteran's hearing loss and tinnitus were less likely than not aggravated by loud noise exposure while in service.  

Regarding tinnitus, she stated that it is most often a symptom of hearing loss, but it also has been related to multiple other causes such as brain injury, depression, anxiety, high blood pressure, medications and vascular changes in the inner ear secondary to aging.  If a reasonable nexus cannot be established between the Veteran's hearing loss and military service then it is also difficult to establish a direct link to the tinnitus and military service since tinnitus is most often considered a symptom of the hearing loss.  She concluded by stating that tinnitus is less likely as not caused by or the result of military noise exposure.  

Initially, the Board notes that with respect to bilateral hearing loss, that this condition pre-existed service.  It is notable in this regard, that upon entrance audiological evaluation revealed bilateral hearing loss to such a degree to be considered a disability for VA purposes.  38 C.F.R. § 3.385.  For this reason, the Board concludes that a hearing loss disability was noted at enlistment, as contemplated by 38 U.S.C.A. § 1153. 

Having found that a hearing loss disability was noted at enlistment, the Board must determine whether such disability worsened during service so as to warrant a presumption of aggravation.  In this regard, the Board notes that his service treatment records are negative for any complaints of hearing loss during service, or at separation from service.  In fact, at separation, he specifically denied any history of hearing loss.  In addition, the only other audiological evaluation in service, which was obtained in March 1974, shows essentially identical pure tone thresholds in the lower Hertz and slightly improved thresholds in the higher Hertz.  Therefore, the service treatment records do not provide any evidence of an increase in disability during service. 

The Board acknowledges the Veteran's contentions that his disability was caused or aggravated by service.  Significantly, in his most specific statement as to the timeline of his hearing loss progression, which was received in January 2008, he specifically indicated that he first experienced symptomatology shortly after his separation from active duty.  Thus, the Board finds that the Veteran's own lay statements also fail to establish an increase in disability during service, which is necessary to warrant a presumption of aggravation. 

Having found that the presumption of aggravation does not apply, the Board has considered whether the evidence otherwise suggests that the disability was permanently aggravated by service.  In this regard, the most probative evidence of record establishes that bilateral hearing loss was not aggravated by service.  In reaching this conclusion, the Board has not considered the March 2008 and March 2013 VA examiner's nexus opinions.  As noted above, the March 2008 nexus opinion was deemed inadequate by the Court and the March 2013 opinion was deemed inadequate by the Board.  Therefore, the opinions carry little probative weight.  

However, the June 2013 VA examiner explained that bilateral hearing loss was not aggravated by service, and that the subsequent increase in severity of this disorder was rather the result of post-service occupational noise exposure and possibly the reported post-service ear infection.  In reaching this conclusion, the VA examiner noted the audiological results obtained prior to and during service, the circumstances of his service and the fact that the Veteran only wore helmet like ear protection occasionally during service, and his post-service occupational history, including the degree of noise exposure therein.  Accordingly, the Board concludes that the most probative evidence of record shows that the Veteran had pre-existing hearing loss that was not aggravated during service.  Thus, the evidence preponderates against the claim and it must, therefore, be denied.  Gilbert, supra. 

The Board has again considered the Veteran's statements concerning the etiology of this claimed disability.  The Veteran is certainly competent to report the onset of symptoms and the circumstances surrounding such.  However, as noted, the Veteran has reported that he first noticed hearing loss shortly after his separation from service.  While he is competent to report the onset of his hearing loss, he is not necessarily competent to assert that hearing loss that first manifested after service was caused or aggravated by service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Therefore, while the Board has considered his assertions, the Board ultimately places far more weight on the opinion of the VA examiner discussed above.

With regards to the tinnitus, the Board again has not considered the March 2008 and March 2013 VA examiner's opinions as they have been deemed inadequate.  However, the Board notes that the June 2013 VA examiner explained that tinnitus is most often a symptom of hearing loss, but it also has been related to multiple other causes.  She concluded by stating that tinnitus is less likely as not caused by or the result of military noise exposure.  She reached her conclusion after consideration of the medical evidence of record, the Veteran's assertions and the findings in the examination.  The Board places great probative weight on the opinion and therefore, finds that the competent evidence preponderates against a finding that tinnitus is related to service. 

As with bilateral hearing loss, the Board notes that tinnitus is a condition capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation").  Nevertheless, the Veteran has offered contradictory histories in regards to tinnitus. On one hand he has related that this condition began in or shortly after service, and on the other he has stated that it began well thereafter.  See e.g. January 2008 VA audiology note.  Given these inconsistencies, the Board affords his lay observations little weight, particularly as he denied a history of ear trouble at discharge.  Curry, supra.  Consequently, the Board places far more weight on the opinion of the VA examination, who found that this condition was less likely than not caused by military noise exposure.  Accordingly, the evidence preponderates against the claim for service connection of tinnitus and it is also denied.  Gilbert, supra. 


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