Citation Nr: 1328320 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-14 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph Aquilina, Associate Counsel INTRODUCTION The Veteran had active military service from December 1962 to November 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which denied service connection for hearing loss and tinnitus. FINDINGS OF FACT 1. Bilateral hearing loss was not shown in service or within one year of service discharge and the competent evidence fails to establish an etiological relationship between the Veteran's diagnosed hearing loss and his active service. 2. The competent and credible evidence fails to establish that the Veteran's tinnitus had its onset in service or is otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. The criteria for a grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in February 2010. Nothing more was required. VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and identified private treatment records with the claims file. No outstanding evidence has been identified that has not already been obtained. In February 2010 VA provided the Veteran with a medical examination and obtained a medical opinion addressing whether his current hearing loss and tinnitus had an onset during or was caused by active service. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's hearing loss and tinnitus including entrance and discharge examinations. The examiner provided a sufficiently detailed description of the disability, and the examiner provided rationale to support this opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present diagnosed disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (2004). Service connection may be granted for any disease diagnosed after discharge, when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, sensorineural hearing loss may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown in service, 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). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). Regulation 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In Hensley, the Court held 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). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). With regard to lay evidence, the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Discussion The Veteran currently has a diagnosed hearing disability, bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. The Veteran was diagnosed with normal to moderately severe bilateral hearing loss in a February 2010 VA Examination and noted a diagnosis of tinnitus as well. Element (1) of Shedden is met. Turning to whether there is evidence of in-service incurrence or aggravation, the Veteran's service treatment records are absent any findings of complaints, treatment, or diagnosis of hearing loss or tinnitus (ringing in the ears). When comparing his service enlistment examination to his discharge examination, a threshold shift of 10 decibels at 4000 hertz as well as a shift of five decibels at 2000 hertz is shown bilaterally. There was no indication that such amounted to hearing loss and his hearing was still within normal limits for VA purposes. However, the Veteran reports an in-service history of exposure to noise at the obstacle course, rifle range noise, and living in a tent city near an airfield (while deployed in Vietnam). There is no reason to question this history. Thus, while in-service hearing loss or tinnitus is not demonstrated, the Board finds that there is sufficient evidence of in-service noise exposure. With regard to the nexus requirement of Shedden, a VA examiner concluded that Veteran's current hearing loss and tinnitus were not casually related to his military service. The examiner premised this opinion in part on the in-service audiology reports. The reports featured normal hearing at entry and discharge physical examinations. Significantly, the examiner remarked that there were no "significant threshold shifts when comparing" the Veteran's entry and discharge physicals. Further, the examiner mentioned the information relayed by the Veteran himself; that the onset of tinnitus did not occur until well after service when the Veteran was 30-35 years old (approximately a decade post service). The examiner added that the Veteran was also unable to recount the onset of tinnitus to a specific event. The Board finds the examiner's opinion to be highly probative as it is predicated upon a thorough review of the claims folder and contains a rationale with discussion of the Veteran's medical history. The examiner accurately described the in-service and post-service evidence and explained the reasons for conclusions. The Board finds a medical opinion more probative and adequate when it is supported by clinical evidence or other rationale to support the finding. Bloom v. West, 12 Vet. App 185, 187 (1999). Also of records are some private medical records. These records were for physical examinations that did not feature auditory testing. At best, they present an inconsistent evidentiary picture of the Veteran's hearing loss and tinnitus during the recent years. In a June 2008 physical examination checklist the Veteran self-reported "ringing the ears" but did not complain loss of hearing on the symptoms checklist. In an October 2009 physical exam the Veteran reported normal hearing and reported no ear related issues such as tinnitus symptoms. Given the variance and inconsistency of the Veteran's reporting of symptoms the private records do not impart a great deal of support to the Veteran's claims for service connection. Consideration has also been given to the Veteran's assertion that his hearing loss and tinnitus are related to his in- service noise exposure. He relates that he spent five to six weeks in tents living in close proximity to Tan Son Nhat Airport with exposures to jet engines and helicopters and that the tents did not shield him from the air traffic noise. He explains that there is no documentation of hearing loss in service because he consciously avoided going on sick call in hopes of getting home sooner. The Board has little reason to question the Veteran's history of noise exposure or his desire to avoid seeking medical treatment 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), as to the specific issues in this case, hearing disorders, including sensorineural hearing loss and tinnitus, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hearing loss is not the type of condition that is readily amenable to probative comment regarding its etiology, as the evidence shows that audiology testing and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report decreased hearing acuity and tinnitus (ringing in the ears), there is no indication that the Veteran is competent to etiologically link these reported post-service symptoms to his current diagnoses of sensorineural hearing loss and tinnitus, which were not diagnosed until several decades after his service discharge. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Continuity of symptomatology has not been claimed either. The Veteran has not specifically argued that either his hearing loss or tinnitus has its onset in-service and has continued since that time. Rather, as referenced above, he argues that the post-service development of these disorders is related to his in-service noise exposure. The record is also devoid of any remarks or complaints about any occurrence of hearing difficulty or tinnitus until the 2008 private medical record, more than 40 years after the Veteran's discharge. Indeed, the Veteran gives the onset of his tinnitus to approximately 10 years after his discharge. The Board has similarly considered the 2009 statement of the Veteran's spouse in support of his claim. His spouse relates that she has noticed the Veteran having trouble hearing "for a very long time" but that the "Veteran would not admit to the problem" and that seeing a doctor was not an option. While the Board takes such statements into account, the spouse's statements offer little probative weight. The Veteran's spouse merely states that the Veteran has had hearing problems with an indeterminate time period. She has not stated whether she had the opportunity to observe the Veteran's hearing from when he was discharged to the present. Application of 38 C.F.R. § 3.303(b) is not warranted. As there is no persuasive clinical evidence linking the Veteran's present hearing loss or tinnitus to his period of service, his claims of entitlement to service connection for bilateral hearing loss and tinnitus must therefore be denied. Because the evidence in this case is not approximately balanced with respect to the merits of these claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs