Citation Nr: 1330133 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-27 962 ) 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: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to June 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at a February 2013 Travel Board hearing. The hearing transcript is of record. In May 2013, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 December 2008, 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 December 2008 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 2013, to afford the Veteran an examination for his bilateral hearing loss and tinnitus. The Veteran was afforded a VA examination in July 2013. 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 due to in-service noise exposure. Specifically, during his February 2013 Travel Board hearing, he reported that for several months during the early part of his enlistment, during the Cuban Missile Crisis, he was assigned to a project which demonstrated to civilians how the missile protection system worked. As part of this, they operated a simulated missile detonation, which caused the sound of an explosion inside a Quonset hut where the Veteran was operating the detonator. He stated that this occurred every day for several months, and that he was without ear protection throughout. He said he was also on the Army Rifle Team, and regularly fired weapons without hearing protection as well. He said he noticed hearing loss and ringing in the ears, but was told by his sergeant that it would go away. He also reported that after service, he had an office job for 34 years without noise exposure, and did not have any other significant noise exposure after service. The medical evidence of record shows that the Veteran has a current bilateral hearing loss disability and tinnitus. VA treatment records from the Gainesville VA Medical Center show that the Veteran reported "cricket sounds" in his right ear in 2003, and that he was diagnosed with hearing loss and tinnitus and prescribed hearing aids 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. At the time of the Veteran's separation examination in April 1964, in the right ear, the decibel thresholds were slightly worse in the higher frequencies of 3000 and 4000 hertz than at entrance, but there was no evidence of hearing loss for VA compensation purposes or tinnitus. Service personnel records show that the Veteran's military occupational specialty (MOS) was clerk typist. However, they also show that he received a sharpshooter (rifle) and expert (carbine) badge. Furthermore, the Veteran has reported that he was assigned to the Honor Guard and Army rifle team, which exposed him to acoustic trauma during military service. The Veteran is competent to report noise exposure in service. Furthermore, the Board finds that his statements are credible and consistent with the circumstances of his service. Hence, the acoustic trauma is deemed to have occurred. 38 U.S.C.A. § 1154(a), (b) (West 2002). The Veteran testified during his Board hearing, that VA doctors had indicated to him that his hearing loss was of service origin. VA treatment records show that the Veteran reported significant noise exposure during his military service related to his then diagnosed hearing loss, however; they do not show that VA doctors opined that his hearing loss was related to his military service. See November 2004 audiology note and November 2008 and May 2009 primary care notes. The Veteran was afforded a VA audiolgocial examination in June 2010. The examiner opined that he had bilateral hearing loss and tinnitus which were less likely than not due to military noise exposure. The examiner explained that although the Veteran currently had a significant high frequency sensorineural hearing loss, his hearing was completely normal at separation, so the hearing loss was more likely a post-service occurrence. Since there was no evidence of high frequency hearing loss at separation, the tinnitus was also less likely due to military noise exposure. However, service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner failed to address whether there was a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. In this regard, the Veteran credibly testified that he did not have significant post-service noise exposure. As such, the Board found the opinion of the June 2010 VA examiner inadequate for evaluation purposes. In accordance with the Board's May 2013 remand, the Veteran was afforded another VA audiological examination in July 2013. The Veteran reported that his tinnitus started in service, and that he noticed hearing loss right after his discharge. However, the examiner noted that the Veteran's hearing loss was within normal limits at enlistment and separation, with no threshold shift evidence, and that service treatment records were silent for tinnitus. He opined that as there was no objective evidence of a threshold shift or onset of hearing loss or tinnitus in service, and no objective evidence in the service treatment records that the Veteran sustained noise injuries, there was therefore, no medical basis to conclude that the Veteran's hearing loss and tinnitus were causally related to military service, to include military noise exposure, and the Veteran's hearing loss and tinnitus were less likely as not caused by or a result of military service/in-service noise exposure. The examiner explained further that a September 2005 Institute of Medicine Report on noise exposure in the military, concluded that, based on current knowledge, noise-induced hearing loss occurs immediately, i.e., there is no scientific support for delayed onset of noise-induced hearing loss weeks, months, or years after the exposure event, and that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, and according to the Noise Manual, noise seldomly causes a permanent tinnitus without also causing hearing loss. There is no contrary medical opinion of record. The Board finds that the July 2013 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 tinnitus in service and hearing loss immediately following 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 Veteran's reports of a continuity of hearing loss and tinnitus since service, and within one year of his discharge 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 the aforementioned VA treatment records in 2003, more than 30 years after his discharge from active service. Moreover, the July 2013 VA audiologist who examined the Veteran and reviewed the claims folder has opined that the Veteran's hearing loss and 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, as a layperson, is 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