Citation Nr: 1328170 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 11-02 666A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1968 to January 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2006 and February 2008 rating decisions of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. During this hearing, the Veteran was advised of the evidentiary requirements for his claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In July 2010, these matters were remanded by the Board for additional development. FINDINGS OF FACT 1. A left ear hearing loss disability was not manifested in service; left ear sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current left ear hearing loss disability is related to an event, injury, or disease in service. 2. It is reasonably shown that the Veteran has tinnitus which began in service and has persisted. CONCLUSIONS OF LAW 1. Service connection for a left ear hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 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 warranted. 38 U.S.C.A. §§ 1110, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. July 2006 and November 2007 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. These letters also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA audiological evaluations in September 2006, January 2008, and August 2010. The Board finds the examinations, opinions and record to now be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he developed hearing loss in service. He states that on separation from service, he "just wanted to get home and asked the tech not to report it." He noted that he went back to work at International Harvester with a hearing loss. The Veteran also asserts that he has constant tinnitus due to noise trauma in service. The Veteran's service personnel records reflect that his service occupational specialty was heavy truck driver. The Veteran's STRs are silent for any complaints or treatment of left ear hearing loss. On November 1967 pre-induction examination, audiometry revealed that left ear puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 30 --- 30 On January 1970 service separation examination, the Veteran's ears were normal on clinical evaluation. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 30 25 20 In an associated report of medical history, the Veteran specifically denied hearing loss and any ear problems. In August 1975, a physician (Dr. Main) with the Hearing Testing Section of International Harvester (the Veteran's postservice employer) stated that the Veteran presented to him with a "classical history of a noise induced hearing loss." Dr. Main noted the Veteran was in the artillery section in the service and complained of tinnitus during that time. Dr. Main also noted the Veteran had a "normal audiogram upon admission to the service and an abnormal audiogram upon his discharge." Following a physical examination and audiogram, bilateral SNHL was diagnosed. Dr. Main noted that speech discrimination was good and the Veteran was advised about ear protection. Dr. Main concluded that the Veteran's hearing "will get no better but may get worse with continued exposure." The Veteran submitted an individual audio report from International Harvester. This report includes audiometry from July 1975 (showing hearing loss) to January 2000 and shows a continuing decrease in the Veteran's hearing acuity over time. On September 2006 VA audiological examination, the Veteran reported a sudden hearing loss in both ears around 1970, which he attributed to being around artillery and other loud noises associated with his military job. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 LEFT 20 35 85 85 95 Speech audiometry revealed speech recognition ability of 64 percent in the left ear. Bilateral SNHL was diagnosed. A May 2007 VA treatment record notes the Veteran was fitted for hearing aids. On April 2008 private audiological evaluation, it was noted that the Veteran reported a long history of hearing loss, present since he was discharged from the service, in addition to constant bilateral tinnitus. The impression was bilateral SNHL with associated tinnitus. The audiologist stated that she "described the underlying etiology of the tinnitus as being secondary to his hearing loss." The Veteran was encouraged to limit background noise as much as possible. On January 2008 VA audiological examination, the Veteran reported gradual, bilateral hearing loss which he attributed to noise from artillery in service. He also reported constant tinnitus, which he indicated he notices mainly at night when trying to sleep, with onset in the 1970s. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 LEFT 25 40 90 85 95 Speech audiometry revealed speech recognition ability of 56 percent in the left ear. Bilateral SNHL and constant subjective tinnitus were diagnosed. Regarding tinnitus, the examiner opined that it was less likely than not due to or related to acoustic trauma in service. The examiner explained there was no indication of complaints of tinnitus in the Veteran's STRs or in his private audiology record, and also noted that on VA examination in September 2006, the Veteran denied having tinnitus. In October 2009, the Veteran testified before the Board regarding his hearing loss and tinnitus. He stated that the ringing in his ears is "always there." In response to the September 2006 VA examination report noting he denied a history of ringing in his ears, he noted that he did not have hearing aids at that time and there were things he could not understand. The Veteran further testified that when he returned to work at International Harvester following service, he was told that he could not work in certain departments with high noise levels. He indicated that in 1975, he was sent to a specialist, who found that "both ears were bad." On August 2010 VA audiological evaluation, the Veteran reported bilateral hearing loss and ringing in his ears; he reported that the tinnitus is constant and had been present for at least 20 years. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 LEFT 25 40 90 95 100 Speech audiometry revealed speech recognition ability of 36 percent in the left ear. Left ear SNHL (normal to profound) and constant subjective tinnitus were diagnosed. The examiner related the Veteran's tinnitus to his hearing loss. The examiner opined that the Veteran's hearing loss is not due to noise trauma in service. She noted that the Veteran presented in service with a mild hearing loss, but that at discharge, the Veteran only had a mild hearing loss at 2000 Hertz, "which is actually a slight improvement from his hearing status upon entrance into military service." Additionally, the examiner noted that once the Veteran "was away from military excessive noise, his hearing would not have gotten worse in future years from such." Regarding tinnitus, the examiner indicated that it was a symptoms of hearing loss, but opined that this is less likely than not due to noise trauma in service. In support of her opinion, she noted the Veteran's past inconsistent responses regarding the onset of his tinnitus and the lack of evidence within his STRs or private medical records to support that the Veteran does have tinnitus. The examiner did not note that the Veteran had reported tinnitus in service to his private provider in 1975. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including organic diseases of the nervous system - to include SNHL) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Hearing loss disability is defined by regulation. For the purpose 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, or 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hearing Loss It is not in dispute that the Veteran has a left ear hearing loss disability by VA standards, as such is shown by official audiometry. What he still must show to establish service connection for the left hear hearing loss is that it is related to his service, to include as due to exposure to noise trauma therein. The Veteran's STRs, which include the reports of his service entrance and separation physical examinations, are silent for any complaints or treatment related to left ear hearing loss. [Right ear hearing loss was noted on separation examination and has been service-connected.] Therefore, service connection for left ear hearing loss on the basis that it became manifest in service and persisted is not warranted. The first audiometry showing a left ear hearing loss disability by VA standards is dated in 1975, five years after the Veteran's separation from service (and after he had been employed in a noisy environment for a number of years). As there is no competent evidence that SNHL disability of the left ear was manifested to a compensable degree in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions (for SNHL as an organic disease of the nervous system). Regarding whether the Veteran's left ear hearing loss is otherwise related to his service, the only medical evidence that specifically addresses this question consists of the August 1975 private and the August 2010 VA opinions. Regarding the August 1975 private opinion, the Board observes that the physician did not discuss the Veteran's ears separately, but instead discussed the Veteran's overall audiological picture. And while the physician noted that the Veteran had a normal audiogram upon admission to service, but an abnormal audiogram upon discharge, the Board observes that this was true only for the right ear (in which ear hearing loss has been determined to be service-connected). The private opinion is not probative evidence as to the left ear because it is not specific as to that ear (when the factual data reflect differing disability pictures on service separation as to the right and left ears). Notably, this August 1975 private opinion is also based on audiometry in 1975, which is five years after service and reflects the Veteran's hearing acuity after his exposure to postservice occupational noise trauma. The Veteran asserts and has testified that he was assigned job positions post-service that involved less exposure to noise because of his hearing loss disability. The fact that he was evaluated and monitored for hearing loss under Occupational Safety and Health Administration (OSHA) standards belies his assertions that he did not work in a noisy environment. The Board finds more probative and persuasive the opinion of the August 2010 VA examiner, finding that the Veteran's left ear hearing loss is less likely than not related to service. That provider expressed familiarity with the entire history of the Veteran's hearing loss (including the finding of left ear hearing loss in 1975); and explained the rationale for the opinion offered, citing to supporting factual data, including that audiometry at separation showing apparently improved hearing acuity in comparison with that shown of service entrance. Because that opinion is based on the entire record, is specific as to the left ear (in contrast to the private opinion), and is supported by rationale that cites to supporting factual data, the Board finds it both probative and persuasive. The Board acknowledges the Veteran's contentions relating his hearing loss to acoustic trauma in service, however, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether a hearing loss disability not noted on separation may be related to noise trauma in service (in the face of normal separation audiometry) is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Veteran's opinion in this matter is not probative evidence. Notably, he does not cite to supporting factual data, medical literature, or a probative supporting medical opinion. Regarding the Veteran's allegation that he was found to have a left ear hearing loss disability on service separation (and has had it continually since), but told the examiner not to report it because he wanted an expeditious discharge from service, that explanation is inconsistent with the separation examination report (which shows audiometry reflecting a right ear hearing loss, and a diagnosis of such, which is service-connected), is obviously self-serving, and is deemed to not be credible. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a left ear hearing loss. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. Tinnitus As tinnitus is a disability capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374) (2002)), and it has been reported by the Veteran and acknowledged by VA care-providers, it is shown that the Veteran has tinnitus. What remains necessary to establish service connection for the tinnitus is evidence of a nexus between such disability and the Veteran's service/exposure to noise trauma therein. One method of establishing a nexus (and service connection) is by showing inception of the disability for which service connection is sought during service. See 38 C.F.R. § 3.303(a). The Veteran asserts his tinnitus began in service and has persisted. His service medical records do not note tinnitus; the Board must look to the other medical and lay evidence of record pro and con in this matter. The fact that tinnitus was not noted in the STRs does not preclude that it may have been present but not reported to medical care providers. Consequently, the credibility of the Veteran's accounts of onset of tinnitus in service becomes a critical factor in this matter. Against the Veteran's claim are notations in clinical records (in September 2006 that he had no history of tinnitus and in January 2008, that it had its onset in the 1970s), and the August 2010 VA examiner's opinion (relying on those notations) that the tinnitus was unrelated to service. Regarding the report of no history of tinnitus on September 2006 VA examination, the Veteran has testified and provided a statement (see December 2008 substantive appeal) explaining that he was not wearing hearing aids at the time of such examination and likely did not properly hear the question, and that the VA physician misunderstood him. In support of the Veteran's claim is a July 1975 record noting the Veteran complained of tinnitus in service. While the Board has found no actual record in service noting a complaint of tinnitus in service , the fact that he reported this in 1975 tends to support his claim. And although there are some inconsistencies regarding the onset of tinnitus, given the proximity of the 1975 record to service and the attribution to noise trauma, the Board finds this record to be probative evidence and more persuasive than the Veteran's later accounts regarding onset. Further, both a private audiologist (see April 2008 private treatment record) and a VA examiner (see August 2010 VA examination) have related the Veteran's tinnitus to his hearing loss disability (and while the August 2010 VA examiner provided an opinion against this claim, that examiner did not acknowledge the Veteran's 1975 documented reported of tinnitus). As right ear hearing loss is service-connected, there is competent evidence that relates the Veteran's tinnitus etiologically to a service connected disability. The requirements for establishing at least secondary service connection for tinnitus are reasonably met. Resolving any remaining reasonable doubt in the Veteran's favor, as is required under 38 C.F.R. § 3.102, the Board finds that service connection for tinnitus is warranted. ORDER Service connection for left ear hearing loss disability is denied. Service connection for tinnitus is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs