Citation Nr: 1329615 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-20 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin 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 F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which confirmed a previous denial of service connection for bilateral hearing loss and tinnitus. In May 2012, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Bilateral hearing loss was not present in service or for years thereafter, and is not etiologically related to service. 2. Tinnitus was not present in service or for years thereafter, and is not etiologically related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active military service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active military service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and 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. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that in August 2006, prior to the initial adjudication of the claims, the Veteran was provided with the notice required under § 5103. The Board notes that, even though the letters requested a response within 60 days, they also expressly notified the Veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). The Veteran was given the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) in the August 2006 letter. The Board notes that all pertinent evidence has been obtained in this case and the Veteran has been given an appropriate VA examination for his bilateral hearing loss disability and tinnitus. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the denied claims. The Board is also unaware of any such evidence. The Board remanded the claim in May 2012, to afford the Veteran an examination for his bilateral hearing loss and tinnitus. The Veteran was afforded a VA examination in May 2012. The examination provided the information requested in the remand, with regard to the claims for bilateral hearing loss and tinnitus, and in that regard, is adequate for rating purposes. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). In sum, the Board concludes that any errors in the notice and the development of the claims by the originating agency were not prejudicial to the Veteran. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2012). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2012). The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Once evidence is determined to be competent, the Board must then determine whether that competent evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994) Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, that does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). Impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an organic disease of the nervous system. 38 C.F.R. § 3.309(a) (2012). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Accordingly, the Veteran's claims of continuity of symptomatology have been considered and addressed. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, where hearing loss that is an organic disease of the nervous system manifested to a compensable degree within one year following separation from service, service connection shall be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that he has bilateral hearing loss and tinnitus, related to noise exposure during active service. Specifically, he claims that his hearing problems and tinnitus began in service after a hand grenade exploded in close proximity to him during basic training. He claims that he was deaf for three days following the incident and that his hearing eventually returned, but the ringing in his ears persisted. The Veteran's wife, parent, and other friends, some of whom are Veterans, submitted lay statements, attesting to the fact that the Veteran informed them that he was exposed to a grenade explosion during basic training and that he was deaf for three days following the incident. The medical evidence of record shows that the Veteran has a current bilateral hearing loss disability and tinnitus. Private treatment records show treatment for hearing loss with complaints of tinnitus beginning in 2004. The evidence of record, however, does not show that the Veteran's current bilateral hearing loss or tinnitus is related to noise exposure during active military service. Service treatment records are negative for any evidence of hearing loss or tinnitus, and there was no evidence of hearing loss or tinnitus at the time of the Veteran's discharge examination in August 1971. The Veteran's U.S. Army Reserve 1978 enlistment examination is also negative for any evidence of hearing loss for VA compensation purposes or tinnitus, and the Veteran denied any hearing loss at that time. Furthermore, the Board finds that there is no basis for finding that the Veteran's military occupational specialty (MOS) of Cook, would render him vulnerable to excessive noise exposure in service. The Veteran was afforded a VA audiolgocial examination in February 2007. However, the examiner concluded that the test results were not adequate for rating purposes, as a non-organic hearing loss was revealed bilaterally. During a subsequent July 2007 VA audiological examination, the Veteran complained of tinnitus, which was constant and bilateral. He was diagnosed with symmetric sensorineural hearing loss. The examiner opined that the Veteran's tinnitus was more likely than not related to his bilateral hearing loss, and that the Veteran's hearing loss disability began after service. However, he did not provide an opinion as to whether the hearing loss and associated tinnitus identified after service were related to a disease or injury in service. As such, the Board found the opinion of the July 2007 VA examiner inadequate for evaluation purposes. In accordance with the Board's May 2012 remand, the Veteran was afforded another VA audiological examination in May 2012. The Veteran again complained of hearing loss, which he reported began during military service, when he was exposed to noise from a hand grenade explosion. An audiogram conducted at that time showed bilateral sensorineural hearing loss from 500-4000 hertz. The audiologist opined that the Veteran's tinnitus was at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner also opined that the Veteran's current hearing loss was not at least as likely as not caused by or a result of an event in military service. His rationale was that the Veteran's discharge examination was within normal limits, with no complaints of tinnitus, and the Veteran stated that he was in good health. The examiner also noted that hearing loss due to noise is not progressive in nature, and therefore, with his discharge examination within normal limits, any hearing loss noted would more likely than not be the result of something other than service noise. There is no contrary medical opinion of record. The Board finds that the May 2012 VA opinion was based on a full review of the record. Furthermore, the examiner considered the Veteran's reports of noise exposure and onset of hearing loss and tinnitus in service, in addition to his reports of a continuity of symptomatology since that time. The opinion is complete and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for bilateral hearing loss and tinnitus. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the Veteran's representative has argued that the Veteran's tinnitus is not related to his hearing loss, and instead, it was directly caused by the Veteran's claimed in-service noise exposure. The representative also reported that the Veteran contends that his tinnitus began in service and has continued since that time. See November 2012 statement in support of claim. The Veteran's report of continuity of tinnitus since service is discussed further below. However, the VA audiologist opined in both July 2007 and May 2012 that the Veteran's tinnitus is a symptom associated with his diagnosed bilateral hearing loss. Neither the Veteran nor his representative has not presented any medical evidence to support their claim their conclusion that the Veteran's tinnitus is not associated with his hearing loss. Therefore, the Board finds that this opinion of the Veteran's representative lacks probative value. The Veteran's reports of a continuity of hearing loss and tinnitus since service is competent evidence of a continuity of symptomatology. However, his report must be weighed against the contemporaneous record. The Veteran first reported such continuity, however, years after service and only in connection with the claim for VA compensation. Furthermore, the first contemporaneous evidence of hearing loss or tinnitus in the record is from 2004 private treatment records, more than 30 years after his discharge from active service. Moreover, the May 2012 VA audiologist who examined the Veteran and reviewed the claims folder has opined that the Veteran's hearing loss and associated tinnitus are not related to service, and there is no contrary medical opinion of record. The Veteran is competent to report the symptoms of his disability. Such symptoms are "observable" symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, it would require medical expertise to say that the current hearing loss or tinnitus identified long after service, are the result of in-service noise exposure. The Veteran, and the other individuals who submitted statements on his behalf, as laypersons, are not qualified to render an opinion concerning the medical cause of his hearing loss or tinnitus. 38 C.F.R. § 3.159(a)(1),(2) (2012). The Board finds that the examiner's opinion is more persuasive than the Veteran's assertions of continuity of symptomatology. Accordingly, the Board concludes that the preponderance of the evidence is against the claims and service connection for bilateral hearing loss and tinnitus on a direct basis is not in order. The Board also notes that without clinical evidence of manifestation of hearing loss or tinnitus to a compensable degree within a year after discharge, presumptive service connection also is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs