Citation Nr: 1328785 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-29 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1979, from January 1991 to June 1991, from October 2001 to May 2002, and from March 2003 to August 2004. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from March 2005 and January 2007 rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. The Veteran then perfected timely appeals of these issues. The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this remand, along with the Veteran's paper claims file. FINDINGS OF FACT 1. Bilateral sensorineural hearing loss was not aggravated by and did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. 2. Tinnitus was not manifest in service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active service and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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, 486 (2006). The Veteran received complete VCAA-compliant notice, to include the disability-rating and effective-date elements of a service connection claim, prior to the March 2005 and January 2007 rating decisions on appeal. The Veteran received corrective notice regarding the theory of service connection based upon aggravation of a preexisting condition in May 2013. The Veteran has not shown any prejudice in regard to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was provided with VA audiological examinations in February 2005, October 2012, and June 2013. The examinations were adequate because they contained a history obtained from the Veteran and thorough audiological examination relevant to the applicable rating criteria. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. In May 2013 the Board remanded the claim for corrective notice and a medical opinion by an audiologist, both which have been provided. The Board finds on review that the RO substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative has made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the 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 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, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. 155, 159. 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 or death benefits. 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). 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, 24 Vet. App. 428 (2011); see also Jandreau, id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background The Veteran contends that his currently diagnosed bilateral hearing loss and tinnitus is related to noise exposure sustained in military service. In his September 2004 claim, the Veteran stated that he was exposed to high levels of noise in combat during Operation Iraqi Freedom. He further stated that both of his conditions had onset in 2004. In his December 2007 notice of disagreement (NOD), the Veteran stated that his exposure to improvised explosive devices caused ringing in his ears. On his August 2009 VA Form 9 the Veteran indicated that his post-deployment hearing test was inaccurate and that he suffered from tinnitus in service. A review of the Veteran's STRs shows that he has been previously diagnosed with hearing loss. The Veteran's military entrance examination in August 1975 documents normal hearing. The Veteran's remaining STRs for his period of active duty from September 1975 to September 1979 are unavailable. See RO's Formal Finding of Unavailability dated in September 2012. However, the Veteran's DD-214 does document that his Military Occupational Specialty (MOS) for this first period of service was a Rifleman, which suggests exposure to excessive noise in service. The Veteran's Reserve records document bilateral hearing loss in July 1987, prior to the Veteran's second period of active duty. The Reserve and service records then document bilateral hearing loss in April 1991, January 1992, February 1996, May 1996, April 2001, June 2001, October 2001, July 2002, March 2003, and July 2004 - both during and in between the Veteran's periods of active duty. A review of the Veteran's VA outpatient treatment records was negative for any etiological discussion of hearing loss or tinnitus. The Veteran was administered a VA examination in February 2005. The examiner noted that, although the Veteran was pleasant in demeanor, the test results were inconsistent and did not appear to reflect his maximal effort. There was poor intertest reliability. The test results were considered invalid and unreliable, thus no opinion regarding the Veteran's hearing loss or tinnitus was rendered. The Veteran was administered an additional VA examination in October 2012. The examiner noted that, although the Veteran was pleasant in demeanor, the test results were inconsistent and did not appear to reflect his maximal effort. It was further noted that the Veteran most likely does have some hearing loss, but not to the degree that he was admitting. The test results were considered invalid and unreliable, thus no opinion regarding the Veteran's hearing loss or tinnitus was rendered. A review of the Veteran's private treatment records revealed two audiological examinations conducted in March 2013. In the initial evaluation, the examiner found that the speech reception thresholds were in disagreement with his pure tone average. The examiner felt that the results were consistent with some degree of malingering. However, it was noted that the Veteran had tinnitus of the severity of a 5 on a scale of 1 to 10 and that such condition could interfere with perception of tones. In the Veteran's additional examination, the examiner noted that there was no discrepancy in the Veteran's speech reception thresholds and his puretone average. He recommended hearing amplification due to the degree of hearing loss and tinnitus. The Veteran was diagnosed with severe flat sensorineural hearing loss bilaterally. The Veteran's speech reception threshold was 70 dB HL in the right ear and 65 dB HL in the left ear. Word recognition testing was 80 percent in the right ear and 72 percent in the left ear. The type of word recognition testing was not revealed. The examiner found that the patient test reliability was excellent. The examiner did not render an etiological opinion for either the hearing loss or tinnitus in either examination. The Veteran was administered an additional VA examination on June 2013. The examiner noted that, although the Veteran was pleasant in demeanor, the test results were inconsistent and did not appear to reflect his maximal effort. There was poor intertest reliability. The examiner noted the inconsistencies found in the two prior VA examination as well as the Veteran's private examination. It was also noted that, while there was consistency in the Veteran's latter private examination, the thresholds were significantly worse than the former private examination and other examination, thus suggesting the results were exaggerated. The test results were considered invalid and unreliable, thus no opinion regarding the Veteran's hearing loss or tinnitus was rendered. Analysis - Hearing Loss Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss, so the appeal must be denied. As the evidence shows that there is a current disability, based upon the Veteran's diagnoses of hearing loss, as well as findings of in-service documentation of hearing loss, the issue thus turns upon whether there was any exclusive in-service incurrence or aggravation and, if so, whether there is medical evidence of a nexus between such incurrence or aggravation and the present disability. See Hickson, 12 Vet. App. at 253. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). 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, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to 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) ("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, and statements made during treatment. Caluza, 7 Vet. App. at 498. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337 (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Here, we find that the Veteran is competent to report symptoms of hearing loss and the circumstances surrounding such. However, as explained below, we find that the more probative evidence is against the finding that his current hearing loss is related to military service or an aggravation thereof. To the extent that the Veteran asserts that he has bilateral hearing loss that is related to service, the Board finds that his assertions are not credible. First, it appears that the evidence of record suggests that the Veteran's bilateral hearing loss may have pre-existed all of his periods of active military service, except his first one. However, the record of evidence does not indicate that the Veteran incurred hearing loss during his first term of service. Although the Veteran's MOS of Rifleman from his first period of service suggests possible exposure to excessive noise, the absence of notation in the available medical record from that period as well as the fact that the Veteran has claimed his current hearing loss had onset in 2004 and is the result of noise exposure while serving in support of Operation Iraqi Freedom tends to support the theory of a later onset. The Veteran has not previously indicated that his hearing loss onset was during his first period of active service and nothing in his VA or private treatment records appears to indicate such an assertion. The Board has weighed the Veteran's statements and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than evidence showing that his hearing loss preexisted his period of active service, the Veteran's own statements regarding later onset, and the absence of any medical evidence showing an etiological relationship between hearing loss and service. Additionally, the Veteran has been given ample opportunity to have an etiological opinion provided that would serve as a possible finding of a nexus. However, due to the Veteran's lack of cooperation with audiological examiners, such an opinion has not been able to be obtained. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As such, evidence that may have been favorable to the Veteran's claim was not available and, thus cannot be considered in this appeal. In summary, the preponderance of the evidence is against the grant of service connection for bilateral hearing loss. Accordingly, the claim is denied. Analysis -Tinnitus Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for tinnitus, so the appeal must be denied. As the evidence shows that there is a current disability, based upon the Veteran's diagnoses of tinnitus at his March 2013 private examination, as well as findings of in-service complaints of ringing in his ears after an improvised explosive device explosion, the issue thus turns upon whether there is medical evidence of a nexus between such in service complaints and the present disability. See Hickson, 12 Vet. App. at 253. Here, we find that the Veteran is competent to report symptoms of tinnitus and the circumstances surrounding such. Further, as explained below, while we find the Veteran's statements about experiencing ringing in his hears on an occasion in service to be credible, we find that the more probative evidence is against the finding that his current tinnitus is related to military service or an aggravation thereof. Regarding the tinnitus claim, the Board finds that a VA examination and medical opinion were needed in order to establish a nexus due to the Veteran's previous non-cooperation at VA examinations and tendency to over exaggerate his symptoms. Regarding a current diagnosis, the Veteran reported experiencing tinnitus at his recent private outpatient treatment visit in March 2013. Regarding an in-service incurrence of this disorder, in his December 2007 NOD, the Veteran stated that he witnessed an improvised explosive device during his final period of active duty, and experienced ringing in his ears following this event. This event is not documented in the Veteran's STRs. However, the Veteran received a Presidential Unit Citation for this period of service; thus, his combat exposure during this period is presumed. See 38 U.S.C.A. § 1154(b) (2012) ("[VA] shall accept as sufficient proof of service- connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . ."). Therefore, the claims file contains medical evidence of a current disorder, competent and credible lay evidence of an in-service incurrence of this disorder, and lay evidence of an indication that the disorder is related to in-service events. However, due to the Veteran's lack of cooperation with audiological examiners, an etiological opinion of the Veteran's tinnitus has not been able to be obtained. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood, 1 Vet. App. at 190. VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk, 21 Vet. App. at 568. As such, evidence that may have been favorable to the Veteran's claim was not available and, thus cannot be considered in this appeal. The Board has weighed the Veteran's statements and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the absence of medical documentation of his condition until 2013, his failure to cooperate with VA examiners, and the absence of any etiological opinion. In summary, the preponderance of the evidence is against the grant of service connection for tinnitus. Accordingly, the claim is denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs