Citation Nr: 1328136	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  09-23 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to an increased rating for a service-connected bilateral hearing loss disability, currently assigned a noncompensable evaluation.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tahirih S. Samadani, Counsel




INTRODUCTION

The Veteran served on active duty from November 1968 to June 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.


FINDINGS OF FACT

1.  The evidence of record does not demonstrate that a relationship exists between the Veteran's tinnitus and his active duty military service.

2.  Bilateral hearing loss disability is manifested by Level II hearing loss in the right ear and Level IV hearing loss in the left ear.


CONCLUSIONS OF LAW

1.  Tinnitus was not incurred in active duty military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).

2.  The criteria for a compensable evaluation for bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In correspondence dated in March 2008, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2008).  Specifically, the March 2008 notice informed the Veteran of information and evidence necessary to substantiate the claim for service connection for bilateral hearing loss and tinnitus and of the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which he was expected to provide.  The March 2008 notice informed the Veteran of information and evidence that governs the initial assignment of a disability evaluation and the regulations regarding the effective date of the establishment of service connection.  

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  Service treatment records have been associated with the claims file.  All identified and available post-service treatment records have been secured.  The Veteran has been medically evaluated and a medical opinion has been sought in conjunction with his claim in April 2008 and October 2009.  The duty to assist has been fulfilled.

The Board acknowledges that it has been almost four years since his last examination in October 2009.  Despite this, the Veteran has not asserted that his hearing loss has worsened since that time or that there is any deficiency in the October 2009 VA examination.  The United States Court of Appeals for Veterans Claims (Court) has stated that the duty to assist is not a one-way street.  If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  

I.  Tinnitus

Relevant law and regulations

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).  No such presumption exists for tinnitus disabilities.

An alternative method of establishing the second and/or third element of Hickson is through a demonstration of continuity of symptomatology.  See 38 C.F.R. § 3.303(b).  However, the Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Tinnitus is not so listed.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

In essence, the Veteran contends he has a tinnitus disability that was caused by acoustic trauma endured as a result of flying in helicopters in Vietnam.  See the Veteran's April 2008 statement. 

As noted above, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two.  See Hickson, 12 Vet. App. at 253. 

With respect to Hickson element (1), current disability, it is undisputed that the Veteran currently has a diagnosis for bilateral intermittent tinnitus.  See the April 2008 VA examiner's report, page 2.  Accordingly, a current tinnitus disability is demonstrated by the record.  Hickson element (1) is therefore satisfied as to this issue.

With respect to Hickson element (2), in-service disease or injury, the Board will separately address disease and injury.

Concerning in-service disease, the Veteran's service treatment records do not reflect that the Veteran complained of, sought treatment for, or was diagnosed with any disease affecting his ears.  Service audiological testing reflects that he had normal hearing on the entrance examination and mild flat hearing loss at separation.  See May 1968 induction Report of Medical Examination; also see June 1970 Report of Medical Examination; also see June 2003 VA examiner's report, page 2.  Therefore, there is no evidence of in-service disease.

Concerning in-service injury, the Veteran contends that riding in a CH-47 Chinook helicopter every day for one year in Vietnam caused his tinnitus.  He explains that hearing protection in the helmets worn at that time were not very good.  See Veteran's notice of disagreement dated in March 2009.  The Veteran is certainly competent to discuss whether or not he was exposed to loud noise.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds no reason to doubt that the Veteran experienced in-service noise exposure flying in helicopters every day for a year with inadequate hearing protection during his active duty military service.  Hickson element (2) is therefore satisfied as well.

With respect to crucial Hickson element (3), nexus or relationship, the only medical opinion of record addressing the etiology of the Veteran's tinnitus disability is that of the April 2008 VA examiner, who after reviewing the Veteran's claims folder, opined that the Veteran's tinnitus was not caused by or a result of acoustic trauma as a helicopter repairman during his military service.  The examiner explained that the Veteran reported intermittent tinnitus for approximately the past three years which indicated an onset of 30 or more years after his military service.  See the April 2008 VA examiner's report, pages 2.  

As to the adequacy of the April 2008 opinion, the examiner reviewed the Veteran's claims file, examined the Veteran and asked him about the history of his tinnitus disability.  In the examiner's opinion, he considered the Veteran's statement regarding onset of his tinnitus and the Veteran's occupation as a helicopter repairman during his military service.  For these reasons, the Board finds the April 2008 to be adequate and of high probative value.  

There is no medical opinion of record contrary to that of the April 2008 VA examiner.  The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his service-connection claim, and against the reasoned conclusions of the April 2008 VA examiner; he has not done so.  See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits].  Private audiological examinations conducted in September 2005 and August 2004 do not mention a diagnosis of tinnitus.

With regard to lay evidence, the Veteran reported ringing in his ears in February 2008 statement.  In April 2008 and March 2009 statements, the Veteran reported flying in CH-47 Chinook helicopters almost every day while in Vietnam.  The Veteran reported that hearing protection was not very good in the helmets that he wore.  The Veteran claims that his tinnitus began three years prior to the April 2008 examination and the evidence indeed shows that he denied tinnitus in a June 2003 VA examination.  

In making this decision, the Board must fully consider the lay assertions of record.  In this regard, a layperson is competent to report on the onset of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

Competency of evidence differs, however, from the weight and credibility assigned to evidence.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

The Board acknowledges that the Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See supra Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  The Board notes that the statements as to possible relationships between the Veteran's tinnitus and his military service are etiological questions unlike statements as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet).  While he is competent to report the onset of his symptoms, the Veteran is not found to be competent to render etiological opinions in this circumstance.  Specifically, he does not have specialized training in the auditory functioning of the ear.  Thus, the Board gives more credence and weight to the April 2008 VA examination reports, which it has already noted to be high probative value.  See supra Prejean v. West, 13 Vet. App. 444, 448-9 (2000). 

As noted above, although the Veteran claims his tinnitus is due to service, the Veteran has not contended that his tinnitus had its onset in service.  Indeed, he specifically noted onset of tinnitus three years prior to his April 2008 VA examination.  Accordingly, Hickson element (3), relationship or nexus, has not been satisfied as the issue of service connection for tinnitus, and the Veteran's service-connection claim fails on this basis alone.  The benefit of the doubt rule is not for application because the evidence is not in relative equipoise.

II.  Bilateral hearing loss

Relevant law and regulations

Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment.  38 U.S.C.A. § 1155.  A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work.  38 C.F.R. § 4.2.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).

Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85(a) and (d) (2012).

To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2012).  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next highest Roman numeral.  38 C.F.R. § 4.86.  The evidence demonstrates that the appellant did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz in the right ear.  

Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test.  The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test.  The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test.  The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear.  The same procedure will be followed for the other ear.  The numeric designations are then applied to Table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating.

Analysis

The Veteran seeks a compensable evaluation for his bilateral hearing loss disability.  He maintains that he cannot understand speech so he avoids joining in a conversation.  The Veteran reports that he cannot understand speech over construction equipment running.  

The Veteran submitted private treatment records showing hearing testing in August 2004 and September 2005.  First, these examinations were not conducted during the period on appeal.  The Veteran filed his claim in 2008.  Second, these tests did not include Maryland CNC Speech testing, and it cannot be used to evaluate the Veteran's hearing loss under VA standards.  

In December 2007, the audiological testing was conducted, but full results were not included in the treatment record.  Therefore, this evidence cannot be used to evaluate the Veteran's hearing loss. 

The Veteran was afforded a VA examination in April 2008.  Diagnostic testing resulted in the following puretone thresholds:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
35
60
65
70
57.5
LEFT
40
60
65
70
58.75

Speech discrimination scores were 92 percent in the right ear and left ear.  The diagnosis was normal hearing sloping to moderately severe sensorineural hearing loss in the right ear and mild hearing loss sloping to moderately severe sensorineural hearing loss in the left ear.  

The Board observes that application of the regulation to the findings on the April 2008 audiometric evaluation results in a numeric designation of II for the right ear and II for the left.  A noncompensable evaluation is warranted when those values are applied to Table VII.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2011).  

An additional VA examination was conducted in October 2009.  Puretone thresholds were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
40
65
65
75
61.25
LEFT
45
65
70
70
62.5

Speech recognition scores were 96 percent for the right ear and 80 percent for the left ear.  The diagnosis was normal to moderately severe high frequency hearing loss in both ears.

The Board observes that application of the regulation to the findings on the October 2009 audiometric evaluation results in a numeric designation of II for the right ear and IV for the left.  A noncompensable evaluation is warranted when those values are applied to Table VII.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2011).  

Accordingly, the Board concludes that the current noncompensable evaluation is appropriate.

The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards."  38 C.F.R. § 3.321(b)(1).  In this regard, the Board finds that there has been no showing by the Veteran that the service- connected hearing loss disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization, or otherwise rendered impractical the application of the regular rating schedule standards.  Notably, while the Board has observed the Veteran's statement that he was forced to resign from a job in the past for his hearing loss, the Veteran is currently working for an asphalt paving company.  Furthermore, the objective findings associated with audiometric testing do not support a compensable evaluation.  

Furthermore, with regard to whether the schedular criteria for hearing loss are adequate in this case, although the assignment of disability evaluations is based on a mechanical application of numerical tables to the numerical findings upon audiological evaluation, the Board finds that the numerical criteria in the rating schedule contemplate the impairment of function that is experienced by the Veteran.  Specifically, the Board determines that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.

The rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25,200 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  Id.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17,295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.

The Board has determined that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule.  The schedular rating criteria adequately contemplate the Veteran's symptomatology, and the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995).


ORDER

Service connection for tinnitus is denied.

Entitlement to a compensable rating for bilateral hearing loss disability is denied.



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs