Citation Nr: 1329091 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 13-03 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. Bilateral hearing loss was not present during the appellant's active service, or shown to be manifest to a compensable degree within one year of his separation from active duty; and the most probative evidence establishes that the appellant's current bilateral hearing loss is not causally related to his active service or any incident therein. 2. Tinnitus was not present during the appellant's active service, and the most probative evidence establishes that the appellant's current tinnitus is not causally related to his active service or any incident therein. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties A. Duty to Notify The VA satisfied its duty to notify the Veteran. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. § 5103, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159; provide that VA will notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant of which portion of the evidence is to be provided by the claimant, and which part VA will attempt to obtain on his behalf. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for benefits administered by the VA. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability rating and effective date elements of a claim for service connection. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that following the Veteran's March 2011 claim and prior to the initial adjudication of that claim in January 2012, the RO mailed the Veteran July 2011 notice of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. This July 2011 notice satisfied VA's duty to notify the Veteran. B. Duty to Assist The VA has also satisfied its duty to assist the Veteran in the development of his claim. 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 service personnel file with the claims file. The RO has further associated the Veteran's St. Louis VAMC treatment records with the Veteran's Virtual VA file, and the Veteran has not identified any available private treatment records. Thus the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In December 2011, the VA provided the Veteran a medical examination. In March 2013 the VA examiner offered a further medical opinion addressing the nature of the Veteran's current hearing loss and tinnitus, and assessing the possibility that hearing loss or tinnitus could be related to his service. The Veteran's representative has argued that this examination is inadequate, based on the examiner's reliance on the Veteran's in-service audiological testing as proof of a lack in-service damage to his hearing acuity, without discussion of the likely noise exposure incurred though his Military Occupational Specialty. This argument is flawed as not only did the RO concede noise exposure based on the Veteran's Military Occupational Specialty in the January 2012 Decision on appeal, but the VA examiner also discussed this in-service noise exposure in her December 2011 VA examination report and March 2013 addendum opinion. The Veteran's representative cited to Fast Letter 10-35 (September 2010) and Training Letter 10-02 (March 2010) in support of this argument, yet 38 C.F.R. § 19.5 provides that the Board is not bound by Department manuals, circulars, or similar administrative issues. The examination and opinion are adequate. An examination is adequate where it is based upon consideration of the Veteran's prior medical history and describes the disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123. The opinion and conclusion of an examination are adequate when the examiner supports the conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl, at 124. Here the December 2011 VA examination report and March 2013 addendum opinion show that the examiner considered the relevant medical history of the Veteran's in-service noise exposure, provided a sufficiently detailed description of the current disabilities under the criteria of 38 C.F.R. § 3.385, and provided an analysis to support her conclusion. The December 2011 VA examination report and March 2013 addendum opinion satisfy the VA's duty to assist this Veteran by providing him with an adequate examination. As VA has 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. Accordingly, the Board will address the merits of the claim. II. Merits of the Claim The Veteran contends that his hearing loss and tinnitus had their onset in service, due to the hazardous noise exposure he incurred as an Armor Crewman. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied. In order to establish entitlement to service connection for any disability on a direct basis, the record must contain (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) as an "organic disease of the nervous system." "Organic disease of the nervous system" is a chronic disease subject to presumptive service connection pursuant to 38 C.F.R. § 3.309(a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Service connection for sensorineural hearing loss may be awarded as a chronic disease, if manifested and identified as such in service, or within the one year presumptive period under 38 C.F.R. § 3.307 and provided that the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed in §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. A. Hearing Loss The Board will initially consider service connection for hearing loss under the test for direct service connection under Shedden and 38 C.F.R. § 3.303(a). First, the December 2011 VA examination establishes a diagnosis of hearing loss and tinnitus. 38 C.F.R. § 3.385 requires testing at 500, 1000, 2000, 3000, and 4000 HZ; and the administration of a Maryland CNC speech discrimination test. 38 C.F.R. § 3.385 further requires the results of that testing to show 40 decibels of loss at any of those frequencies, or 26 decibels of loss at three of those frequencies, or speech recognition scores less than 94 percent for a showing of hearing loss for VA purposes. The December 2011 VA examiner's audiological testing results show diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385, with results of at least 26 decibels of loss at three of those frequencies in each ear and speech recognition scores of 88 percent in the right ear and 84 percent in the left ear. Therefore the Veteran has a current diagnosis for hearing loss, and has satisfied the first part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Next, the Veteran has reported in-service exposure to hazardous noise in his March 2012 notice of disagreement. Nothing in the regulatory or statutory provisions require both medical and competent lay evidence; rather, competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1131 (2006). Here, this information is also consistent with Veteran's DD 214, which shows the Military Occupational Specialty of an Armor Crewman. The job duties of an Armor Crewman likely exposed the Veteran to hazardous noise levels while in-service. Therefore, there the Board finds the Veteran is credible as to his report of in-service exposure to hazardous noise. This in-service exposure to hazardous noise constitutes an in-service injury, and the evidence of record has satisfied the second part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). The final element for service connection under Shedden is competent evidence of a nexus between the current hearing loss diagnosis and in-service exposure to hazardous noise. As noted above, in certain cases, competent lay evidence may satisfy any of the required elements for service connection under Davidson. The VA examiner has offered a negative medical nexus opinion in the December 2011 VA examination report and March 2013 addendum, and the Board finds this opinion to be the most probative evidence as to the element of a nexus to service. Therefore, the evidence of record fails to satisfy the third part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). The December 2011 VA examiner offered that it was less than likely that the Veteran's hearing loss was related to his active service. A medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl, 21 Vet. App. at 124. Here the examiner supported her conclusion by citing the lack of audiological testing showing diagnosis for hearing loss at the October 1976 separation examination. To further support this opinion she considered the Veteran's likely exposure to "excessive noise" in-service, but relied on the October 1976 separation examination as proof that this noise exposure had no negative impact on his hearing. Ultimately, she found it likely that aging effects are playing a role in the Veteran's current hearing loss. Here the December 2011 VA examination was conducted by a state licensed audiologist; and she reviewed the claims file, including the relevant medical evidence of the Veteran's Military Occupational Specialty, likely in-service exposure to hazardous noise, and three in-service audiograms. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App 467, 470-471 (1993). She weighed the Veteran's report of in-service onset for both hearing loss against this in-service audiological testing in reaching her conclusion. Finally, the examiner also reviewed the Veteran's claims folder, including his medical history. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This review of the claims folder yielded a discussion of the comparison between the Veteran's December 1973 entrance examination and October 1976 separation examination in a March 2013 addendum opinion. She considered the possibility of any threshold shift in the Veteran's hearing acuity between his December 1973 entrance examination and October 1976 separation examination for indication of permanent damage caused by in-service by exposure to hazardous noise, but found no significant threshold shift based on this comparison. For these reasons, the Board finds the December 2011 VA examiner's negative medical nexus opinion to be the most probative evidence on the element of a nexus to service. As the Veteran has a diagnosis of sensorineural hearing loss which is considered an "organic disease of the nervous system" and could be subject to presumptive service connection under 38 C.F.R. § 3.309(a), the Board has carefully considered whether service connection should be awarded on a presumptive basis or based on a continuity of symptomatology under 38 C.F.R. § 3.303(b). As explained by the Court in Walker, there are two ways to establish service connection for a chronic disease. In this case, the Veteran was not diagnosed with hearing loss during service and it was not identified. The Veteran's March 1974 interim audiological examination showed a reading of 20 to 30 decibels at 500 HZ. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) defines normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. To the extent that this could suggest a characteristic manifestation or notation of hearing loss during service, the Board must consider if this rises to the level of establishing hearing loss during service. The Board finds that it does not, as the actual diagnosis would still be subject to legitimate question in light of the return to normal hearing as defined by Hensley at the October 1976 audiological examination and without hearing loss for VA purposes at any point during service as required by 38 C.F.R. § 3.385. There is also no evidence reflecting hearing loss to a compensable degree within one year of the Veteran's separation from service. Accordingly, in order to establish service connection the Veteran must demonstrate a continuity of symptomatology. Review of the record shows no medical evidence of continuity of symptomatology. Here, there is no private or VA medical evidence showing treatment or diagnosis for hearing loss within a year of the Veteran's December 1976 separation from service. In fact, the first indication of any complaint for hearing loss is the December 2010 St. Louis VAMC treatment records. Nothing at that time suggested in-service onset. In other words there is 34 years between the Veteran's discharge from service and initial complaint of hearing loss. Evidence of a prolonged period without medical complaint, and the amount of time elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). More significantly, there is not silence alone in the present case. Rather at separation from service in 1976, the Veteran's October 1976 audiological examination showed normal hearing acuity. However, a claim of presumptive service connection could still prevail with a showing of continuity of related symptomatology after discharge. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. The Veteran has reported in-service onset for hearing loss in 1973 on his March 2011 claim. To the extent that this raises the possibility of lay evidence as to a continuity of symptomatology, the Board will evaluate that evidence for competency and credibility. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Also, a layperson is competent to report on the onset and continuity of his current symptoms. Id. The Board finds the Veteran competent to report his difficulty hearing, and the onset thereof, as a readily observable symptom of hearing loss. Credibility affects the weight to be given to his testimony, and it is the Board's responsibility to determine the appropriate weight. Id. at 469. The Board notes that the Veteran's in-service audiograms do not support the Veteran's contentions. That the contemporaneous medical records do not support his contention which must be considered as evidence against the claim. Maxson, 230 F.3d at 1333. Further the Veteran's own statement, made in October 1976 on his report of medical history at separation from service, contradicts the statement as to inservice onset for hearing loss in his March 2011 claim. Consistency is a factor in assessing the credibility of lay statements. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Given the inconsistency of the Veteran's statements, the Board must find the October 1976 contemporaneous statement more credible than his March 2011 inconsistent statement. Curry v. Brown, 7 Vet. App. 59 (1994). The Board therefore finds that the Veteran's report of in-service onset for hearing loss, and any suggestion that this statement creates as lay evidence as to a continuity of symptomatology, is not credible and must be weighed as holding no probative value. The evidence of record fails to satisfy the third part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Direct service connection for hearing loss is denied. Presumptive service connection for hearing loss as a organic disease of the nervous system is also denied as explained above. B. Tinnitus Tinnitus is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) as an "organic disease of the nervous system." Tinnitus is also not listed as a chronic diseases subject to presumptive service connection at 38 C.F.R. § 3.309(a). Therefore the Board will consider service connection for tinnitus under the test for direct service connection under Shedden and 38 C.F.R. § 3.303(a). First, the December 2011 VA examination report shows diagnosis for tinnitus, based on the Veteran's report of intermittent tinnitus. Next, the Veteran has reported in-service exposure to hazardous noise in his March 2012 notice of disagreement. As discussed above, the Veteran is competent and credible in that report of in-service exposure to hazardous noise based on his Military Occupational Specialty as an Armor Crewman. Therefore, in this case, there evidence of both current diagnosis for tinnitus, and an in-service injury; and this evidence has satisfied the first and second parts of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). The final element for service connection under Shedden is competent evidence of a nexus between the current tinnitus and in-service exposure to hazardous noise. As noted above, in certain cases competent lay evidence may satisfy any of the required elements for service connection under Davidson. The Veteran reported in-service onset for tinnitus on his March 2011 claim for service connection. As a lay person can offer testimony as to tinnitus under Charles v. Principi, 16 Vet. App 370, 374 (2002); that statement must be considered competent. However, as discussed above, Board has already deemed the Veteran's report on his March 2011 claim as to in-service onset for hearing loss and tinnitus not credible, and therefore entitled to no probative weight. Again the Board must consider the negative medical nexus opinion in the December 2011 VA examination report and March 2013 addendum opinion as the most probative evidence as to the element of a nexus to service. As reviewed above, the December 2011 VA examiner concluded it was less than likely that the Veteran's tinnitus was related to his active service. She based this opinion on the "intermittent" and "random" nature of Veteran's current tinnitus, terminology from his own description of the condition to her at the examination. In her characterization of the Veteran's tinnitus as "normal," she cited medical literature to support her conclusion. While the Veteran is competent to testify as to his observable symptoms and their onset, he is not credible in that testimony. The VA examiner's opinion carries more weight due to her thorough review of the relevant medical history and greater level of expertise, education, and experience. For these reasons, the Board finds the December 2011 VA examiner's negative medical nexus opinion to be the most probative evidence on the element of a nexus to service. Nieves- Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124; Guerrieri, 4 Vet. at 470-471. Therefore, this claim has not satisfied the third part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). For these reasons, the claims for service connection of hearing loss and tinnitus are denied. The Board has also considered the benefit of the doubt rule in this case, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it. There is no evidence of either incurrence of a disease or injury caused by the in-service noise exposure, or indication that either the Veteran's current hearing los or tinnitus is related to his active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for hearing loss and tinnitus is denied. ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs