Citation Nr: 1329528 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-23 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his June 2009 substantive appeal, the Veteran expressed his desire for a hearing before a Veterans Law Judge. Thereafter, in correspondence received in September 2009, he withdrew his hearing request. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file that has been reviewed in connection with this appeal. FINDINGS OF FACT 1. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of the Veteran's discharge from service. 2. Resolving all doubt in favor of the Veteran, tinnitus is related to his military service, to include his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits of the case, the Board notes that 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the claim of entitlement to service connection for tinnitus, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Turning to the claim of entitlement to service connection for bilateral hearing loss, 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); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 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 July 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The letter also notified the Veteran of how VA determines disability ratings and effective dates if service connection is awarded. The letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2008. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records. The Veteran submitted private treatment records and personal statements in support of his appeal. Additionally, the Veteran was afforded a VA examination in November 2008. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the November 2008 VA opinion obtained is more than adequate. The VA audiologist considered all of the pertinent evidence of record, to include the Veteran's service treatment records, personal statements and history, and provided detailed rationale for the opinion stated. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and, accordingly, will proceed to a decision. II. Legal Criteria The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus, which he claims is due to in-service noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Impaired hearing will be considered to be a disability by VA standards when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. However, this does not preclude a veteran from obtaining service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service if medical evidence shows that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). III. Factual Background & Analysis In the discussion below, the Board denies service connection for hearing loss and grants service connection for tinnitus. At the outset, and relevant to both claims, the Board notes that in-service noise exposure is conceded, as the Veteran's DD Form 214 indicates he served as an artilleryman. Service treatment records document that during a February 1964 service entrance examination, the Veteran had clinically normal ears, and denied a history of ear, nose and throat trouble, running ears and hearing loss. Audiological testing then completed revealed the below results. [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). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.] HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 10 (25) 0 (10) 0 (10) 0 (10) 0 (5) During service, treatment records are silent for complaints of bilateral hearing loss or tinnitus. In an April 1966 Report of Medical History, completed by the Veteran at service separation, he again reported a negative medical history of ear, nose and throat trouble, running ears and hearing loss. During the April 1966 separation examination, clinical evaluation of the ears was normal. The Veteran's audiological testing scores were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) -- 0 (5) LEFT 0 (15) 0 (10) 0 (10) -- 0 (5) Post-service medical records first document hearing loss by VA standards in accordance with 38 C.F.R. § 3.385, and a positive history of tinnitus, in a June 2008 private audiological examination record. The June 2008 treating audiologist noted the Veteran's history of in-service noise exposure, and that he reported no post-service occupational noise exposure. She opined that, "given the configuration and severity of audiologic evaluation this day and the reported history, it is at least as likely as not that the Veteran's bilateral hearing loss began secondary to military service. The hearing loss this day is not characteristic of [the Veteran's] age." With respect to tinnitus, the private audiologist did not make an explicit diagnosis of such, or opine whether such was related to service. However, she indicated that the Veteran had a positive history of bilateral tinnitus at night and that he reported his tinnitus was more prevalent at night. In November 2008, the Veteran underwent a VA examination. The examiner noted the Veteran's complaints of bilateral progressive hearing loss that was initially noted several years ago accompanied by non-pathological infrequent transient head noises, describing that they occur only about once a month or less and last for less than a minute. The examiner recounted the Veteran's relevant medical history, to include his service entrance and separation audiograms, in-service artillery-related noise exposure, post-service occupations and June 2008 diagnosis of bilateral hearing loss. After examining the Veteran and conducting audiological testing, the examiner diagnosed the Veteran with bilateral sensioneural hearing loss, but found that he did not have tinnitus. In declining to diagnose tinnitus, the examiner stated that, based on medical literature, the Veteran's descriptions of his reported symptoms were not frequent/persistent enough to meet the medical definition of tinnitus. Regarding the Veteran's hearing loss, the examiner opined that such was less likely than not due to his in-service noise exposure. He explained: This opinion is based on the fact that his separation evaluation documented his hearing as normal for both ears. Therefore, his hearing loss had to begin after he was discharged from the service. Once an individual is removed from the noise source, the effects of that noise on one's hearing ceases. Thus, the noise (in this case the military noise) cannot cause any further progression on the hearing. In June 2009, the Veteran submitted a statement asserting that his hearing has never been the same since he separated from the military, and that the ringing in his ears has "been constant since the first 105 going off." Based on the above, the Board finds that service connection for bilateral hearing loss is not warranted. Here, as the Veteran did not have a diagnosis of hearing loss per VA standards until June 2008, he is precluded from a finding of presumptive service connection since his bilateral hearing loss did not manifest to a compensable degree within one year of service discharge. Turning next to direct service connection, the Board notes that the record contains conflicting opinions regarding whether the Veteran's current bilateral hearing loss is medically related to his in-service noise exposure. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). After weighing the medical evidence, the Board finds the November 2008 VA examiner's opinion to be most probative. In particular, the VA examiner noted the Veteran's hearing at service entrance, separation, and post-service, and provided specific reasoning as to why his bilateral hearing loss was not caused by his in-service noise exposure, explaining that hearing loss cannot occur once an individual is removed from the noise source. By contrast, while the private audiologist cited the Veteran's reported history and the "configuration and severity" of his audiologic evaluation, which she found was not characteristic of his age, in forming her opinion, she did not state why such was necessarily a product of in-service noise exposure, nor did she account for the Veteran's normal separation examination or the decades-long evidentiary gap between service and his first complaints, treatment, and diagnosis of hearing loss thereafter. There was no explanation or discussion of the other relevant facts in this case, and as such, her opinion rests on incomplete information. The Board finds these distinctions significant, as the question before the Board is whether the Veteran's in- service noise exposure caused his bilateral hearing loss. Here, the record contains objective data recorded at service separation, directly after the alleged onset of the Veteran's disability. The November 2008 VA opinion considered the record as a whole-including the state of the Veteran's hearing at service separation-and provides a rationale which more thoroughly illuminates the examiner's reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that it is what an examiner learns from the claims file for use in forming the expert opinion that matters and that, when the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment). The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). In this case, and based on the foregoing, the Board attaches the greatest probative weight to the opinion of the November 2008 VA examiner who had the benefit and review of all pertinent medical records and who provided a rationale supported by the record. As such, the more probative medical evidence has not shown that the Veteran's bilateral hearing loss is related to his military service. The Veteran has argued that the November 2008 opinion violates Hensley by impermissibly relying on the fact that he did not have a hearing loss disability at service separation in finding no relationship between his current bilateral hearing loss and in-service noise exposure. The Board disagrees. Here, the examiner did not merely state that because a hearing loss disability was not shown at service separation that there can be no relationship between the Veteran's current bilateral hearing loss and in-service noise exposure. Instead, the examiner explained why, medically, an absence of hearing loss at service separation from prior noise exposure indicates that no permanent hearing loss had occurred. Because the examiner provided medical reasoning as to why the absence of hearing loss at service separation was indicative that the Veteran's present hearing loss is not causally related to service, there is no Hensley violation. Moreover, the Board recognizes that the available audiometric data from the Veteran's service treatment records show that the Veteran's hearing loss was essentially unchanged from the time of his service induction audiological examination to his separation audiological examination, and even suggest an improvement in the Veteran's hearing in his left ear at 500 Hz. This objective evidence of in-service improvement in hearing strongly suggests an opposite conclusion as to what the Veteran contends, weighing heavily against his claim. Furthermore, the Veteran denied hearing loss at service separation. The Board has considered the Veteran's statements that his bilateral hearing loss is related to his service. While he is certainly competent to relate events in service and after service, and to describe the extent of any current symptomatology, there is no evidence that he possess the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Essentially it is beyond the Veteran's competency to link his bilateral hearing loss to his military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Furthermore, the Veteran was not evaluated for hearing loss until June 2008, in connection with the filing of his claims-more than 40 years after service discharge. Such a lengthy period of time diminishes the strength of the Veteran's claim. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). See also Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). To the extent the Veteran has asserted continuity of symptomatology of hearing loss since service separation, such is not supported by the record, as shown above, and is outweighed by the probative medical evidence of record which finds that his hearing loss is not related to his service. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. Regarding the Veteran's claim of entitlement to service connection for tinnitus, the Board notes the conflicting evidence, outlined above, as to whether the Veteran has a diagnosis of such. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the Veteran is competent to diagnose himself with tinnitus, and, as the evidence is in relative equipoise, the Board finds that the Veteran currently has recurrent tinnitus. The Veteran asserts that his tinnitus had its initial onset in service, and that it has been continuous since that time. Although tinnitus is not a chronic disease under 38 C.F.R. § 3.309(a), given the nature of the disability, the Board has still considered whether his assertions of continuity of symptoms of ringing in the ears persuasively support the claim. Here, the Board finds that tinnitus was incurred in and is attributable to service. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. To the extent that the Veteran denied "ear troubles" at separation, the Board finds this to be an overly general statement of denial and of limited probative value when compared to his current specific and consistent statements endorsing ringing in the ears. As such, the evidence demonstrates credible evidence of in- service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and, that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ B. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs