Citation Nr: 1328925 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 06-38 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for right ear tinnitus. 3. Entitlement to service connection for left ear tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This case comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, Regional Office (RO), which originally had jurisdiction over this appeal. The North Little Rock Arkansas, RO, to which jurisdiction over this case was transferred in April 2010, forwarded the appeal to the Board. In the October 2008 rating decision, it was determined that new and material evidence had been submitted with respect to a previously denied claim of service connection for bilateral hearing loss. The claim was reopened for a de novo review, but the claim was denied on the merits. The claim for tinnitus was also denied. In May 2012, the Board remanded the claims of service connection for bilateral hearing loss and tinnitus for additional evidentiary development. Subsequently, in a December 2012 rating decision, service connection was granted for left ear hearing loss and a noncompensable rating was assigned, effective March 14, 2008. That claim is no longer on appeal. Service connection for right ear hearing loss and bilateral tinnitus was denied, and those claims have now been returned for further appellate consideration. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. Medical findings at entrance into service reveal preexisting right ear hearing loss, and the evidence is convincing that this disability did not undergo a permanent worsening beyond normal progression during the Veteran's active service due to acoustic trauma. 2. Right ear tinnitus is not causally or etiologically related to service. 3. Left ear tinnitus is causally or etiologically related to service. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Right ear tinnitus was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. Left ear tinnitus was incurred in the Veteran's active service. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. As to the claim of service connection for left ear tinnitus, considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. As to the additional claims on appeal for service connection for right ear hearing loss and tinnitus, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in April 2008, May 2008, and May 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The Board further notes that the Veteran was accorded a VA audiometric examination in June 2012 which, as detailed below, included opinions that addressed the etiology of the Veteran's right ear hearing loss and tinnitus. The examiner's opinions were based upon review of the claims file. The examiner's opinions included rationale as to why a private physician's assertions supporting the Veteran's claim were not probative. The Board finds this examination report adequate to resolve this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). Service Connection The Veteran seeks service connection for hearing loss in the right ear and tinnitus. He has contended that his exposure to acoustic trauma in service aggravated his preexisting hearing loss in the right ear, and his tinnitus resulted from the hearing loss. Service connection may be granted for disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of sensorineural hearing loss in the frequencies of 500 to 4000 hertz, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385 (2012). "[I]mpaired 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 (2012). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(d) (2012). However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1110, 1111 (West 2002 & Supp. 2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the "pre-existing condition. 38 U.S.C. § 1153 (West 2002 & Supp. 2012). If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322 (2012). Conversely, if a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. See Wagner, 370 F.3d at 1094-96. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (West 2002 & Supp. 2012); see also 38 C.F.R. § 3.306 (2012); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153 (West 2002 & Supp. 2012); 38 C.F.R. 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). With respect to the issue of service connection for hearing loss in the right ear, the presumption of sound condition on service entrance does not attach because the Veteran's pre-induction/entrance audiograms in July and August 1966, respectively, showed right ear defective hearing. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(b) (2012). The issue thus becomes whether the Veteran's pre-existing disorder was aggravated by service. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306 (2012). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012). Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Background As noted in the Veteran's statement in March 2008, he contends that his preexisting right ear hearing loss was aggravated during service and that he had hazardous noise exposure during his military service in the Republic of Vietnam. He argues that his right ear hearing loss and recurrent tinnitus are the result of that. It is also pertinent to note that prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Pre-induction examination in July 1966 appears to have been conducted using ASA standards. Therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. For ISO conversion, the Board added (+15) (+10) (+10) (+10) (+5) decibels to the puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. On pre-induction evaluation in July 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 30 Upon additional audiometric evaluation in August 1966, it appears that the exam was conducted using the ISO standards. On that examination right ear (pure tone thresholds recorded in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 55 55 55 At time of service separation in September 1968, audiometric testing revealed right ear (pure tone thresholds in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 60 45 35 30 Clearly, preexisting right ear hearing loss was shown upon induction. This fact is not argued by the Veteran. Also on file are post service private records from late 2007. At that time, a private audiologist (R.W.M., Au.D., CCC-A), noted in November 2007 that the Veteran was a hearing aid candidate. Another private physician (J.M.P, M.D.) reported in November 2007 that he had evaluated the Veteran for his hearing loss. He noted that the Veteran had a history of noise exposure during service. His right ear showed only vibrotactile ability in the right ear and a substantial sensory hearing loss at high frequencies in the left ear consistent with noise exposure. He opined that it was highly likely that the Veteran's hearing issues were related to inservice noise exposure. In a December 2007 statement, the private audiologist referred to above noted that the Veteran had a right ear hearing loss that preexisted service. She did not have the claims file available for review, but she had received information from the Veteran outlining his medical history which included that he had had mumps as a child and this caused him to lose 90 percent of his hearing in the right ear. He later jointed the military and was exposed to extreme noise while serving in Vietnam. She felt that his left hearing impairment was consistent with possible noise exposure, but she had no means of tying his hearing loss to any specific etiology. VA audiology examination was conducted in August 2008. The Veteran related that he had a history of inservice noise exposure from small arm fire, artillery fire, and helicopters. He did not use hearing protection and denied any significant post service noise exposure. He also reported bilateral tinnitus which started when he was in Vietnam. On the authorized audiological evaluation, right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 100 100 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 0 percent in the right ear. After review of the claims file, the examiner noted that right ear hearing loss was noted upon service entrance. Separation audiological examination did not reflect aggravation of preexisting right ear hearing impairment. The examiner opined that the Veteran's right ear hearing loss was consistent with reports of childhood mumps. It was also noted that the STRs were negative for report of tinnitus. She opined that after review of the file, personal interview, and examination, it was her opinion that the Veteran's hearing loss and tinnitus were not of service origin. In May 2012, the Board remanded the claims for service connection for hearing loss and tinnitus for additional development. It was specifically noted that the August 2008 VA examiner's opinion did not discuss the November 2007 opinion (summarized above) which supported the Veteran's claim. Additional evaluation of the record was requested. The requested evaluation of the record was conducted by VA in June 2012. The claims file was reviewed. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of active service. He opined that the preexisting right ear hearing loss was not aggravated by service, to include inservice noise exposure. There was severe sensorineural hearing loss at time of induction, and there were no audiograms showing a change in the configuration of the right ear hearing loss as it progressed to a complete non-functioning ear in 2007 and 2008. Thus, there was no indication of acoustic trauma, and it was more likely the natural progression of this ear that was damaged from childhood mumps. The examiner noted that the private examiner in 2007 did not review the claims file and did not address the fact that the Veteran lost most of his right ear hearing when he was a child due to the mumps. Moreover, he did not comment on the fact that the configuration of right ear hearing loss was consistent with loss of hearing from the mumps episodes in childhood. He continued that the private examiner's opinion was a general assumption that the Veteran had been exposed to military noise exposure and that facts were not obtained regarding other possible causes. The same examiner opined that the Veteran's left ear hearing impairment was as likely as not due to inservice acoustic trauma. Moreover, he opined that left ear tinnitus could be said to be related to military service, although right ear tinnitus was unrelated to service for the same reasons as why right ear hearing loss was not related. As noted earlier, in a December 2012 rating decision, service connection continued to be denied for right ear hearing loss and bilateral tinnitus. However, service connection for left ear hearing impairment was granted. Analysis As noted above, although Section 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a current disability and medical evidence of a nexus between a current disability and active service. See Libertine, Caluza, Collete, supra. The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002 & Supp. 2012) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). After review of the evidence as a whole, the Board finds the evidence against the claim for service connection for right ear hearing loss and for right ear tinnitus. The Board finds the most recent VA review of the record with opinions provided in June 2012 to be more probative than the evidence in favor of the claim. In this regard, although the November 2007 private medical opinion finds it as likely as not that the Veteran's bilateral hearing loss is related to exposure to acoustic trauma in service, this opinion, which is not based on a review of the claims file, does not address the fact that the Veteran lost most of his right ear hearing when he was a child due to the mumps. Moreover, the opinion did not address the configuration of hearing loss which, as reported by the VA examiner 2012, reflects hearing loss and tinnitus in the right ear due to childhood mumps and not from acoustic trauma. The VA physician who examined the Veteran in 2008 provided an opinion that also did not support the Veteran's claim, but she did not address the positive evidence of record that supported the Veteran's claim. Thus, her opinions are found to be of very limited probative value. Similarly, as the private examiner in 2007 did not form his opinions based on an accurate medical history, his opinions are also of very limited value. The Board does find the 2012 evaluation to be highly probative as the file was reviewed, and the opinions are corroborated by the medical evidence of record. Due consideration has been given to the Veteran's statements in support of his claim. Although he is competent to report his hearing symptoms, he is not competent to opine that he currently has aggravation of pre-service right ear hearing loss due to service. The Board does not dispute that the Veteran was exposed to acoustic trauma in service; however, the evidence as a whole, as discussed above, does not show increased hearing loss in the right ear due to service. Consequently, service connection for hearing loss in the right ear is denied. Moreover, right ear tinnitus due to inservice occurrence is not shown. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connection claims above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As to left ear tinnitus, however, it is concluded that the VA examiner clearly found in 2012 that such was related to acoustic trauma during active service. He indicated that the cause of the left ear tinnitus was not the same as in the right ear. Instead of being due to childhood mumps, it was opined that left ear tinnitus was due to inservice acoustic trauma. In sum, as to the claim for left ear tinnitus, the Board finds that the competent evidence of record shows that this condition is of service origin. Thus, the criteria for service connection for left ear tinnitus have been met. The Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise as to this issue. Where the evidence supports the claim or is in relative equipoise, the appellant prevails. Reasonable doubt is resolved in favor of the Veteran, and service connection is warranted for left ear tinnitus. Gilbert, supra. The Board points out that for rating purposes, no distinction is made between bilateral or unilateral tinnitus. (CONTINUED ON NEXT PAGE) ORDER Service connection for right ear hearing loss is denied. Service connection for right ear tinnitus is denied. Service connection for left ear tinnitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs