Citation Nr: 1329386 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-24 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from March 1974 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDINGS OF FACT 1. There is no probative evidence that the Veteran's bilateral hearing loss is causally or etiologically related to service or was manifested within a year of service. 2. There is no probative evidence that the Veteran's tinnitus is causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims, a letter dated in May 2009 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with an examination scheduled through VA QTC Services, the report of which has been associated with the claims file, in conjunction with his claim. The examiner provided well-reasoned rationales for his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. Given this, the Board may proceed to a decision on the merits. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection will also be presumed for certain chronic diseases, including other organic diseases of the nervous system, i.e. sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2013). 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, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2013). Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran's STRs show that at his February 1974 enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 n/a 5 LEFT 15 5 25 n/a 5 In September 1976 the Veteran's tympanic membranes had a glazed appearance and he was diagnosed with serous otitis. On a November 1976 medical history report the Veteran indicated having never had hearing loss. At the November 1976 separation examination the ears were normal. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 n/a 10 LEFT 10 0 10 n/a 20 In February 1977 the Veteran indicated that there had been no change in his medical condition since the separation examination. The Veteran's service personnel records indicate that his military occupational specialty was radio relay & carrier attendant. May 2009 VA treatment records show that the Veteran complained of bilateral hearing loss for the past 15 years that was worse on the right ear and had gotten progressively worse. He reported occasional tinnitus in the right ear and military and occupational noise exposure. The Veteran denied ear pain, discharge from the ears, vertigo, head trauma, ear surgery, diabetes or stroke. On audiological testing, the left ear had normal hearing sensitivity to 2000 Hz with mild to moderate high frequency sensorineural hearing loss at 3000 to 8000 Hz. Word recognition ability was good. The right ear had mild to severe sloping high frequency sensorineural hearing loss with fair word recognition ability. The Veteran was diagnosed with asymmetrical hearing loss that was worse in the right ear. At August 2009 VA ear, nose and throat (ENT) treatment the Veteran reported mild tinnitus in the right ear at times that was not bothersome. On examination the external auditory canals were clear and the tympanic membranes were intact. An MRI was negative for an internal ear canal mass lesion. The Veteran was diagnosed with asymmetric sensorineural hearing loss and he was cleared for amplification. In September 2009 the Veteran was fitted for a hearing aid. The Veteran had an examination in January 2010 that was arranged through VA QTC Services. He reported that his hearing loss and tinnitus had existed since 1980 and that it occurred in March 1974 during basic training when a soldier on his right threw a grenade next to him and by exposure to intermittent loud static noise from headphones used in his military job. The Veteran described the symptoms as constant ringing in the ears and right ear hearing loss. His treatment was a hearing aid for the right ear. The Veteran did not experience any overall functional impairment. After service the Veteran worked as a color matcher for two years, in shipping and receiving for three years, as a sand mill operator for three to four years, as a filler for seven years, and as a ball mill operator for three to four years, all without hearing protection. He had used power tools with hearing protection. On examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 55 65 70 LEFT 10 15 20 55 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The Veteran was diagnosed with bilateral asymmetrical hearing loss that was moderately severe on the right and mild on the left. The subjective factors were communicative difficulties and the objective factors were consistent audiometric findings. He was also diagnosed with persistent bilateral tinnitus. The subjective factor was ringing in the ears and the objective factor was the sensorineural hearing loss. The examiner felt it was less likely than not that the hearing loss and tinnitus were associated with military service. The rationale was that audiometric thresholds at the time of separation from service were within normal limits bilaterally with no significant threshold shifts. The Veteran is competent to report that he experienced hearing loss and tinnitus. See Layno, 6 Vet. App. at 470. However, the Veteran's report to the January 2010 examiner that the onset date was around 1980 is not credible because it is contradicted by his report from treatment that the onset date of hearing loss was around 1994. Furthermore, at treatment the Veteran reported occasional right ear tinnitus while at the examination he reported constant bilateral tinnitus. The only competent opinion of record is from the January 2010 VA examiner, who felt that the bilateral hearing loss and tinnitus were less likely than not associated with military noise exposure. The opinion can be given probative value because the examiner was informed of the pertinent facts, fully articulated the opinion, and supported it with a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 303-04; see also Stefl, 21 Vet. App. at 124. The examiner noted military noise exposure but that there had been no significant threshold shifts in the audiometric results between when the Veteran entered service and his exit examination. There are no medical opinions of record indicating that the bilateral hearing loss and tinnitus are related to service. While the Veteran has made statements to the effect that his bilateral hearing loss and tinnitus are related to his active service, he is not competent to make such determinations. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). Finally, there is also no indication from the record that the Veteran had sensorineural hearing loss within a year of service. Because the evidence preponderates against the claims of service connection for bilateral hearing loss and tinnitus, the benefit-of-the-doubt doctrine is inapplicable, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs