Citation Nr: 1328010 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-25 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 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 September 1962 to August 1963 and was transferred into the Army Reserves in September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from the June 2011 decision by the Lincoln, Nebraska, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied benefits on appeal. 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 disability and tinnitus. 2. Bilateral sensorineural hearing loss disability was not first manifested during active duty service or within one year of the Veteran's separation from service and the weight of the evidence is against a finding that a current hearing loss disability is related to military service. 3. Tinnitus was not first manifested during active duty service was not first manifested during active duty service or within one year of the Veteran's separation from service and the weight of the evidence is against a finding that a current hearing loss disability is related to military service. CONCLUSION OF LAW 1. The criteria for service connection of bilateral hearing loss disability 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 CONCLUSION 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. An April 2011 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 April 2011 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 claim. The VA treatment records and examination have been obtained in the development of the claim. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159. The Veteran has not identified private treatment records and the record contains no evidence the Veteran is in receipt of Social Security Administration (SSA) benefits. The Veteran has been afforded a VA examination conducted in May 2011; 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, reviewed the 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. The examination report contains sufficient findings for the Board to render a decision in this appeal. Legal Criteria 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 disability 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. Factual Background The Veteran claims entitlement to service connection for hearing loss disability due to noise exposure during basic training and exposure to aircraft. Additionally, he asserts that his tinnitus began from training at firing ranges and crawling under machine guns during obstacle courses. His DD-214 lists his Military Occupational Specialty (MOS) as a Communications Center Specialist, indicated as a Radio Router for a related civilian occupation. Service treatment records (STRs) show an examination for airborne training eligibility. During service, the Veteran underwent several audiological examinations. The Board notes that the audiological findings contained in the Veteran's service treatment records were initially reported in Acoustical Society of America (ASA) units, which was used for tests conducted prior to October 1967. However, the Board has converted these audiological findings to the currently used standard developed by the International Organization for Standardization (ISO). The unconverted ASA findings are designated in parentheses. Service treatment records (STRs) show no signs or complaints of hearing loss, tinnitus or acoustic trauma. The September 1962 entrance examination included an audiogram (pure tone thresholds in decibels) which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 (5) 15 (5) 20 (10) - 5 (0) LEFT 25 (10) 20 (10) 20 (10) - 15 (10) At the time of his September 1962 entrance examination, the Veteran denied a history of ear, nose, or throat trouble. He also denied a history of "running ears." Physical examination of his ears at the time was within normal limits. During service, the Veteran underwent an April 1963 Medical Board examination which disqualified him from airborne training due to color blindness. Examination of the Veteran's ears at that time was within normal limits. The audiogram (pure tone thresholds in decibels) produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 (10) 20 (10) 20 (10) - 15 (10) LEFT 25 (10) 20 (10) 20 (10) - 15 (10) The Veteran's exit examination from August 1963 had no complaints of hearing loss, tinnitus or acoustic trauma. On the contrary, as with prior examinations, the Veteran denied a history of ear, nose, or throat trouble and running ears. It contained negative whisper voice test results of 15/15. The 1963 exit audiogram (pure tone thresholds in decibels) produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 (10) 20 (10) 20 (10) - 15 (10) LEFT 25 (10) 20 (10) 20 (10) - 15 (10) The STRs contain an Army Reserves quadrennial examination from February 1968 which included a "grossly normal" whisper test but no audiogram. The VA examination indicated the Veteran qualified for retention. At the time of this examination, the Veteran specifically denied a history of hearing loss. Post-service medical records consists of a May 2011 VA audiological examination The Veteran did not state when hearing loss had arisen but described service related noise exposure from basic training and from an aircraft. He denied recreational noise exposure, but reported formerly working in ranching and was currently an over-the-road driver. He denied recent ear pathology, a head injury, vertigo or familial hearing loss problems. He described having constant tinnitus that onset during military basic training but could not state a specific event, injury or disease associated with the onset. Audiological testing in May 2011 revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 30 60 80 LEFT 20 20 30 50 90 The Maryland CNC world list speech recognition score was 98 percent for the left ear and good at 92 percent for the right ear. The May 2011 VA examiner diagnosed the Veteran with hearing loss. The Veteran complained of tinnitus and the VA examiner indicated it is as likely as not a symptom associated with hearing loss. The VA examiner opined it is less likely as not that the Veteran's hearing loss and tinnitus are a result of noise exposure during military service. The rationale provided was there was reportedly noise exposure in the Veteran's military service but there was no progression in the Veterans hearing thresholds from enlistment to separation, and his hearing sensitivity was normal at separation. The VA examiner explained impulse sounds or continuous exposure can cause temporary threshold shifts, which usually abate in 16 to 48 hours after the exposure. Impulse noise may result in immediate and permanent hearing loss and continuous and repeated exposure to loud noise may also cause permanent hearing loss. She further explained that because damage from noise exposure occurs at the time of exposure, a normal audiogram subsequent to noise exposure would verify that the hearing recovered without a permanent threshold shift. The VA examiner provided that likely contributing factors in the Veteran's hearing loss and tinnitus were additional occupational noise exposure as a civilian, aging and health conditions post-service. The examiner reviewed the Veteran's medical records and claim file and based her opinion on clinical experience and expertise. Analysis The Veteran asserted the onset of hearing loss disability and tinnitus was in 1963 in his initial claim and during his VA examination detailed exposure occurred in basic training and from an aircraft. He submitted a statement in April 2011 stating he did not use hearing protection in the Army in 1962 and the ringing in his ears began during training at firing ranges and when crawling under firing machine guns during obstacle courses. In a June 2011 statement the Veteran asserted his current condition has been consistent and persistent since service and currently presents continuing adverse symptomatology. As an initial matter, the Board notes that the Veteran's complaints of exposure to loud noise in basic training with subsequent noise exposure from aircrafts is consistent with history and such activities appear consistent with the circumstances of his service. Accordingly, the Board concludes that the Veteran's reports of in-service noise exposure are credible. Additionally, the evidence establishes the Veteran has a current bilateral hearing loss disability as the May 2011 audiological results meet the requirements of 38 C.F.R. § 3.385 for establishing a current bilateral hearing loss disability. Likewise, tinnitus was diagnosed at that examination. Thus, the remaining question that needs to be resolved is whether the Veteran's current hearing loss disability and/or tinnitus Although the evidence of record shows current bilateral hearing loss and in-service exposure to noise, the weight of the evidence is against a finding that his current hearing loss disability is related to his in-service noise exposure. While the Veteran has reported an in-service hearing of hearing problems beginning with basic training, his service treatment records and service physical examination reports are negative for any complaint, treatment, or diagnosis of either hearing loss or tinnitus. 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 August 1963. 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 lay evidence asserting his hearing loss and tinnitus 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, such report is contradicted by the contemporaneous service records that show audiometric testing within normal limits and the Veteran's denial of any hearing related problems or tinnitus at the time of his service separation examination. Weighing against the claim of continuous hearing problems or tinnitus since service, is the 1968 Reserve quadrennial examination showing a grossly normal whisper voice test. Although the Veteran's current statements of difficulty hearing and tinnitus during service are competent, the Board must conclude that they are not credible given that he denied any history of hearing loss or other ear trouble at separation and during a 1968 quadrennial examination. On the contrary, the Veteran specifically indicated that he did not currently have or had he ever had hearing loss. The Board finds the denials of symptoms during both examinations to be inherently more credible than his statements made decades later in support of a claim for benefits. The Board has placed greater weight of probative value on the statements denying hearing problem and the accompanying medical examination during service, than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. Therefore, the Board concludes that the weight of the evidence is against a finding of a continuity of hearing loss symptomatology or tinnitus since service. As discussed, a negative medical opinion has been provided from the May 2011 VA examination. This examination is of great probative value. 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 examiner recognized the Veteran had exposure to noise in-service but placed more significance on the Veteran's post-military occupational exposure, aging and health conditions as responsible for his hearing loss disability. The audiologist explained that the normal separation audiogram subsequent to the in-service noise exposure verified the Veteran's hearing recovered without a permanent threshold shift. 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. 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 April 2011 when applying for VA benefits. In his May 2011 VA examination the Veteran described the onset as being during military service but he could not associate a specific event, injury or disease. As noted above, the Board finds the statements of in-service incurrence of tinnitus followed by a continuity of symptomatology since service lack credibility because the Veteran denied any history of hearing loss or other hearing loss at separation and during a 1968 quadrennial examination, as discussed above. In contrast, the May 2011 VA examiner provided that the Veteran's tinnitus is not caused by or a result of in-service noise exposure for the same rationale as provided for hearing loss, as discussed above As the preponderance of the evidence is against the Veteran's claims, service connection must be denied. 38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs