Citation Nr: 1328318 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-04 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1992 to January 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the record. FINDINGS OF FACT 1. It is not shown that the Veteran has, or during the pendency of this claim has had, a hearing loss disability of either ear by VA standards. 2. It is reasonably shown that the Veteran's tinnitus became manifest in service and has persisted. CONCLUSION OF LAW 1. Service connection for bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 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, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (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 claims. 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. A March 2010 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for a VA examination (with audiometric studies) in May 2010. This examination is adequate for rating purposes; the examiner expressed familiarity with the pertinent medical history and the examination was in accordance with regulatory guidelines, and included all findings needed for proper adjudication of the claims. 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. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378-1380-81 (Fed. Cir. 2000). Hence, 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 claims. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease 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 sensorineural hearing loss (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. In order to establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 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 an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. 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, (e.g., a broken leg), (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 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. 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. Competent medical evidence may 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 layperson. 38 C.F.R. § 3.159(a)(2). 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). Bilateral Hearing Loss Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by the VA, impaired hearing will be considered 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. 38 C.F.R. § 4.85 outlines guidelines for the conduct of hearing acuity evaluations. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) in service was supply administration and operations clerk. At the June 2011 Travel Board hearing, he testified that he worked on the flight line without ear protection. His STRs indicate regular audiometric testing intended for Veterans who are exposed to hazardous levels of noise in service. Based on the evidence of record the Board concedes that the Veteran was exposed to hazardous noise levels in service. On March 1991 service enlistment examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 5 LEFT 0 0 5 5 0 On January 1992 reference audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 -5 5 10 5 LEFT 5 5 0 5 0 On February 1994 hearing conservation audiometry and medical examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 15 10 LEFT 10 5 5 10 10 On February 1995 hearing conservation audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 5 LEFT 5 10 5 5 10 On the Veteran's July 1995 exit examination, the examiner reported the audiometry results from the February 1995 hearing conservation examination and did not conduct additional audiometric testing. On October 2001 postservice audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 5 LEFT 0 5 0 5 0 Speech recognition ability was not recorded on any of the audiometric examinations conducted by the military. On April 2010 audiological evaluation at a VA clinic, the Veteran's hearing was noted to be normal, with speech recognition excellent (right ear) to good (left ear). On May 2010 VA audiological examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 15 LEFT 0 5 0 5 0 Speech recognition was 94 percent in each ears. The examiner reviewed the audiogram from the prior month and observed that it showed that the Veteran's hearing was within normal limits. While the Veteran has reported a perception of decreased hearing acuity, and VA treatment records note his subjective complaints of hearing loss, to substantiate a claim of service connection for a hearing loss disability, it must be shown that the Veteran has such disability (as defined in 38 C.F.R. § 3.385) by testing as outlined in 38 C.F.R. § 4.85. At no time since the Veteran filed his claim of service connection for bilateral hearing loss is he shown to have had audiometric findings for either ear that meet the definition of a hearing loss disability in § 3.385. As it is not shown that the Veteran has (or during the pendency of this claim/appeal has had) a bilateral hearing loss disability in either ear, the threshold requirement for substantiating a claim of service connection for such disability is not met. Without competent evidence of hearing loss that meets the criteria of 38 C.F.R. § 3.385, there is no valid claim of service connection for hearing loss disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against this claim; therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim must be denied. Tinnitus The Veteran claims that he has tinnitus that had its onset in service. It is not in dispute that he has tinnitus; the medical evidence of record documents his complaints of such, and tinnitus is a disability capable of lay observation (by the person experiencing it). See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds no reason to question the Veteran's accounts that he experiences ringing in his ears. Furthermore, it is conceded (see above) that he was exposed to hazardous noise levels in service. What remains necessary to substantiate the claim of service connection for tinnitus is evidence of a nexus between such disability and the Veteran's service/exposure to noise trauma therein. Against the Veteran's claim is the report of a May 2010 VA audiological evaluation, when the examiner noted that because there were no complaints of tinnitus noted in the Veteran's STRs, and in the absence of a current hearing disability, "there is little basis for concluding that tinnitus is related to military service." However, this opinion does not acknowledge the Veteran's lay accounts of tinnitus onset in service and continuity since. The Board cannot discount such lay evidence of a nexus. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the competent evidence of record reasonably supports the Veteran's allegation that his tinnitus became manifest in service, and has persisted since. While there are no complaints of, or treatment for, tinnitus noted in his STRs, the Board observes that ringing or buzzing in the ears, while annoying, might not be a complaint that is readily reported. Additionally, the Veteran submitted statements from his wife and mother attesting to his complaints of tinnitus beginning in service. The Veteran's mother reported that he has complained of tinnitus symptoms since his 1996 separation from service. His wife relates that he has complained of tinnitus symptoms since they met in 2002, and that he has consistently indicated that said symptoms began during his active service. As the Board finds no reason to question the credibility of the Veteran's accounts, or those of his family members, these statements and testimony are competent evidence to establish that his tinnitus began in service and has been present since. See Buchanan, 451 F.3d at 1337. Accordingly, the record reasonably supports the Veteran's claim. Service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs