Citation Nr: 1328111 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-29 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had a period of service in the Pennsylvania National Guard, followed by active service in the United States Air Force from July 1956 to July 1960. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. In June 2013, the Veteran provided sworn testimony before the undersigned at a Travel Board Hearing. A transcript of that hearing testimony is included in the Veteran's claims file. In July 2013, the Board remanded the issues under appeal for additional development. That development having been completed, the matter is again before the Board for adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have its onset in service, did not manifest within one year of separation from service, and is not the result of a disease or injury incurred in active service, to include in-service noise exposure. 2. The Veteran's bilateral tinnitus did not have its onset in service and is not the result of a disease or injury incurred in active service, to include in-service noise exposure. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in active service, may not be presumed to have been incurred in active service, and was not caused by in-service noise exposure. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in active service and was not caused by in-service noise exposure. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty 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 representative, if applicable, 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). Proper notice from VA 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 claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the Court held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in September 2008. This letter addressed all of the notice elements, to include notification of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. This notice was provided prior to the initial adjudication of the claim in May 2009. Therefore, the Board finds that VA has fulfilled its duty to notify. VA has also satisfied its duty to assist the Veteran at every stage of this case. The Veteran's service treatment records, as well as all identified post-service VA medical records pertinent to the years after service, a VA examination report and addendum report, the Veteran's hearing testimony and his written lay statements are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. VA examination was obtained in December 2008 and an addendum opinion was obtained in July 2013. 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). While the initial report was deemed by the Board to be partially inadequate, the Board remanded the matter to ensure a fair evaluation of the Veteran's claims. Following the additional development, the Board finds that the VA opinions obtained in this case are adequate, as they are predicated on a reading of the service and post-service medical records in the Veteran's claims file and take into consideration the Veteran's competent lay statements regarding the onset of his symptoms and their history. These opinions, when considered as a whole, take into account all of the pertinent evidence of record, to include the Veteran's service and post-service records and his lay statements, and provide a complete rationale for the opinions stated, relying on and citing to the records reviewed. There is adequate medical evidence of record to make a determination in this case. The transcript of the Veteran's June 2013 Travel Board hearing as well as other lay statements provided by the Veteran and his representative are also of record and were considered when adjudicating these claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned discussed with the Veteran the elements of the claim that were lacking to substantiate the Veteran's claims for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims files that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC (statement of the case) and SSOCs (supplemental statements of the case), which informed them of the laws and regulations relevant to these claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Service Connection Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include 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 means 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) . Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)"). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). The determination of whether a veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385. The Court has indicated that, "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." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Court 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, 5 Vet. App. at 157. The Court further held that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected. Hensley at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that his bilateral hearing loss and tinnitus are due to military noise exposure. In particular, he reports that he was an artillery mechanic and aircraft mechanic while in the Pennsylvania National Guard and the United States Air Force, during which time he was exposed to significant noise. At the time of his Travel Board hearing, the Veteran reported that he was exposed to noise during service daily, to include Howitzer canons and aircraft noise from C119, C130 and B47 aircraft. He reported that during his service he did not have hearing protection. The Veteran did confirm that following service he worked in the Philadelphia Police Department and then for National Airlines, and was exposed to noise, albeit with adequate hearing protection in these post-service occupations. The Veteran's National Guard Report of Separation and Record of Service confirms that he was an artillery mechanic during his National Guard service. The Veteran's DD Form 214 confirms that he was an aircraft mechanic during his Air Force service. By virtue of the type of work the Veteran did in both the National Guard and the Air Force, military noise exposure is conceded in this case. Moreover, throughout the duration of this claim and appeal, the presence of a current hearing loss disability in both the right and left ear, as well as tinnitus, have been repeatedly shown. The earliest record showing an indication of hearing loss is a November 1987 audiometry report showing speech audiometry testing results of 55, 70, 95, and 105 at 500, 1000, 2000, 3000, and 4000 Hz, respectively, in the right ear; and 20, 15, 50, and 55 at 500, 1000, 2000, 3000, and 4000 Hz, respectively, in the left ear. Thus, in November 1987, more than thirty years after his separation from service, bilateral hearing loss is shown in the record. In December 2008, a VA examiner confirmed, based upon measurement of puretone thresholds and speech recognition scores, that the Veteran has mild to profound mixed type hearing loss in the right ear, and mild to severe sensorineural hearing loss in the left ear. Moreover, the examiner confirmed bilateral tinnitus at that time. The Veteran, therefore, has a current hearing loss disability and tinnitus in both ears, coupled with conceded in-service noise exposure. The question remains whether there is a causal connection between the hearing loss and tinnitus and the in-service noise exposure. While several private records have also been submitted to show the presence of a hearing loss disability, none of these reports discuss causation. The December 2008 VA examiner opined that the Veteran's hearing loss and tinnitus are not caused by his military noise exposure. The basis for this opinion was that the Veteran's hearing loss was within normal limits in both ears when he left service, and he had an extensive noise exposure history following service, as well as a mixed component to his hearing loss. "Mixed hearing loss is not typically seen as a hearing loss resulting from excessive noise exposure." As for the negative opinion related to tinnitus, the examiner indicated the "tinnitus is likely due to the same etiology of his hearing loss." The Board again notes that "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." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Thus, this basis for the December 2008 examiner's findings were inadequate. Moreover, the examiner noted that mixed hearing loss is not typically associated with noise exposure. The examiner, however, did not diagnose mixed hearing loss in the left ear, only in the right. Because the opinion was not adequate, the Board remanded the matter for an addendum. In a July 2013 addendum report, the VA examiner confirmed that the mixed type of hearing loss experienced by the Veteran is indicative of a sensorineural component to his hearing loss, but that this type of hearing loss is essentially defined by the gap between two sets of thresholds, which demonstrates that sound is not conducting properly through the outer and/or middle ear into the inner ear. The examiner noted that this conductive component making it mixed hearing loss is rarely due to noise exposure. Rather, it can be due to an overlying event, such as a blast wave of an explosion, "not the sound of it." The examiner went on to explain that hearing loss resulting from noise exposure will generally first present in the high frequency range centered around 4000 Hertz, and that medical knowledge has shown that this type of hearing loss does not have a delayed onset. As for this Veteran, the in-service September 1958 examination, as compared to the June 1960 separation examination, fail to show a significant shift in puretone thresholds (with all levels measuring from 5 to 15 Hertz at both examinations). Moreover, again, the Veteran had noise exposure in his civilian occupation following service, and there was no evidence of bilateral hearing loss until more than thirty years following service. Based upon all of these findings, the VA examiner concluded that while the sensorineural component of his hearing loss "could be due to noise exposure...it is more likely than not due to the noise exposure he had during his civilian career" as an aircraft mechanic for PanAm and National Airlines, because "there is no medical evidence that supports a delayed onset of hearing loss due to noise exposure." In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to describe his symptoms, whether the symptoms the Veteran experiences are in any way related to his current disabilities is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Likewise, the Veteran does not have the medical expertise required to determine whether his hearing loss or tinnitus, was incurred in service due to noise exposure, as opposed to due to post-service civilian noise exposure or any other cause. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board accepts that the Veteran was exposed to noise in service. However, this fact does not establish that the Veteran's hearing loss and tinnitus, which manifested many years after that in-service noise exposure, are related to that in-service exposure. Thus, the Board finds that the Veteran is not competent to render a medical opinion on the onset and etiology of his current bilateral hearing loss or tinnitus disabilities. The VA examiner's opinion is the only medical opinion, based upon a review of the complete claims file, addressing the relationship between the current disabilities and active service. Thus, the VA medical opinion is of greater probative value than the Veteran's lay contentions. Id. Further, to the extent that the Veteran is making a claim that service connection is warranted based upon symptoms experienced in service, which have continued ever since, the Board again notes that there is no showing of symptoms of hearing loss or tinnitus at any time during service, within one year of his separation, or for many years thereafter. Thus, there is simply no basis upon which to grant the hearing loss claim on the basis of presumptive service connection for a chronic disease manifesting within one year of service under 38 C.F.R. § 3.309(a). Consideration of this claim on the basis of continuity of a chronic disease noted in 38 C.F.R. § 3.309 is, therefore, not warranted, as there was no notation of hearing loss in service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In conclusion, the competent evidence does not reveal a nexus to bilateral hearing loss or tinnitus, occurring in service. Further, the competent evidence does not indicate that the Veteran had an initial notation of hearing loss or tinnitus during service or for many years following his separation. While the Board has considered the Veteran's lay contentions as to the etiology of his current disabilities, the Board has accorded greater weight to the balance of the probative medical evidence of record. Although the Veteran might sincerely believe that his disabilities are related to service, he, as a layperson, is not qualified to render a medical opinion as to etiology or diagnosis. As such, service connection must be denied. 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable concerning these issues. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs