Citation Nr: 1330226 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-09 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1963. This case comes before the Board of Veterans Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for bilateral hearing loss and tinnitus. The Board has reviewed all the evidence in the Veteran's paper claims file and the electronic records maintained in the Virtual VA system. FINDINGS OF FACT 1. The Veteran was exposed to excessive noise in service from engines on B-52 bombers when taking food out to the flight line for pilots and crew. 2. Bilateral sensorineural hearing loss was not first manifested during active duty service or the first post-service year; the competent and credible evidence is against a finding that hearing loss is related to military service. 3. Tinnitus was not first manifested during active duty service; the competent and credible evidence is against a finding that tinnitus is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 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, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A November 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, a VA audiological examination report dated in December 2010 and lay statements from the Veteran. Moreover, while the record reflects that the Veteran is receiving Social Security benefits due to blindness and depression, VA has no duty to obtain Social Security records because they are not relevant to the Veteran's hearing loss or tinnitus. The December 2010 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history and providing a physical evaluation of the Veteran. Following the above, the examiner provided an assessment of the Veteran's current disability and an opinion. The examiner included an explanation for his opinion, which appears to be based on both the medical and lay evidence of record. Accordingly, the Board concludes that the examination is adequate for rating purposes. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection 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). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Sensorineural hearing loss, as is diagnosed here, is a listed chronic diseases for purposes of presumptive service connection; it is considered an organic disease of the nervous system. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 (2012). Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that threshold levels above 20 decibels indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) citing MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Analysis The Veteran contends that he currently has bilateral hearing loss and tinnitus that is related to acoustic trauma in military service. Specifically, he asserts that he experienced acoustic trauma from exposure to loud sounds from engines on B-52 bombers when he would take food out to the flight line for pilots and crew without hearing protection. Service treatment records show that at examination for entry into service in September 1959, hearing was 15/15 bilaterally via the whispered voice test. Objective testing results from 1959 showed: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Left 10 5 5 10 0 10 Right 10 5 5 10 0 10 No further complaints or indications of hearing or ear problems were reflected in the service treatment records. At no time during service are complaints of or clinical findings consistent with tinnitus noted. The August 1963 separation examination shows that the Veteran's ears were evaluated as normal and his hearing was within normal limits in both ears. Furthermore, on separation, the Veteran completed a Report of Medical History in August 1963. On that report, in section 20, which asked "have you ever had or have now," the Veteran checked "no" in the section for ear, nose or throat trouble. Objective testing at that time showed: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Left 5 0 0 10 -5 5 Right 5 0 0 5 0 5 Prior to November 1967, service department 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). The above audiological findings from the September 1959 and August 1963 examinations have been converted to the ISO standard. Additionally, the Veteran was provided with a VA examination in December 2010, which yielded a negative nexus opinion. The VA examiner explained that he reviewed the Veteran's medical history from the claims file and interviewed the Veteran. The Veteran reported that he was a cook in the Air Force from 1959 to 1963. He denied being in combat, but stated that he was exposed to jet engine noise from the flight line without the use of hearing protection. He complained of tinnitus and stated it began in service. An audiogram showed pure tone thresholds, in decibels, as follows: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 25 30 45 45 40 Right 30 30 35 40 30 Speech audiometry revealed speech recognition ability of 96 percent in the left ear and 92 percent in the right ear. The diagnosis was normal to moderate sensorineural hearing loss in the right ear and normal to moderately severe sensorineural hearing loss in the left ear. Following testing, the examiner then rendered an opinion that hearing loss and tinnitus were less likely than not caused by or a result of acoustic trauma. His reasoning included the fact that the Veteran's entrance and separation examinations showed hearing within normal limits bilaterally 500-4000 Hz, and that his current audiometric configuration 35 years post military service was not consistent with acoustic trauma. The characteristic "noise notch," which is consistent with noise-induced hearing loss, was not present in either ear. The examiner also reasoned that although he was located close to flight deck, his military occupation as a cook did not carry the risk of significant noise exposure , and that one cannot rule out contributions from post-service occupational noise exposure and aging effects. With regard to tinnitus, the examiner stated he could not determine the precise etiology on the basis of the available information without resorting to speculation, but nevertheless opined that the condition was not related to the Veteran's active service. The examiner's opinion was based on the Veteran not being able to correlate its onset to a particular event and that the Veteran was not directly involved in combat. The examiner also noted that there was no evidence of tinnitus in the Veteran's service medical records. A review of the records maintained in the Virtual VA system included a VAMC Kansas City treatment record dated May 2011 shows the Veteran was treated for prostate cancer. In the review of systems, it is noted when describing the ears, it stated "Dizziness No Hearing loss, tinnitus, vertigo, discharge, pain." With regard to a requirement of a current disability, the criteria set forth in 38 C.F.R. § 3.385 were met during a December 2010 VA examination in which a VA audiologist diagnosed the Veteran with bilateral sensorineural hearing loss. The Board also finds that the medical evidence of record establishes that the Veteran currently has tinnitus. In this regard, the December 2010 VA examination report shows that the Veteran had a current complaint of tinnitus. The Veteran is considered competent to report the observable manifestations of his tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a veteran is competent to testify as to the presence of tinnitus); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the threshold element for service connection, a current disability, has been established. The Board also finds that the second service connection element, in-service injury has been met in this case. The Veteran states that he was exposed to very loud noise from exposure to loud sounds from engines on B-52 bombers when he would take food out to the flight line for pilots and crew without hearing protection. The Veteran is competent to report such a history of acoustic trauma, which lies within the realm of his experience. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); 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). Moreover, the Board considers the Veteran's statements regarding noise exposure to be credible as they are both internally consistent and in line with the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Accordingly, the Board resolves all reasonable remaining doubt in the Veteran's favor and accepts his account of in-service acoustic trauma. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (outlining benefit of the doubt rule). Nonetheless, injury during service does not, by itself, warrant service connection. Rather, there must be competent evidence that the Veteran has a current disability that was incurred in service. 38 C.F.R. § 3.303. The Veteran himself has in essence provided a positive nexus opinion with respect to his hearing loss and tinnitus by asserting that both disabilities had their onset due to in-service acoustic trauma. Bilateral Hearing Loss With respect to the December 2010 VA examination, the Board concludes that this opinion is probative and persuasive as the examiner reviewed the Veteran's claims file including his service treatment records and interviewed the Veteran, provided a clear and fully articulated rationale based on the evidence of record and medical literature. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Specifically, the examiner indicated that the Veteran's current audiometric configuration 35 years post military service was not consistent with acoustic trauma. Audiogram results would have shown a "notched" pattern at higher frequencies, where the acoustic trauma did its damage. This was not shown upon testing at the time of separation, nor was it shown upon testing at the time of the December 2010 VA examination. In contrast, the Veteran's statements that he believes a nexus exists between his hearing loss and service is entitled to less evidentiary weight. In this regard, the Board notes at the outset, that the Veteran has not demonstrated that he is an expert when it comes to diagnosis or etiology of audiologic conditions; he is therefore a layperson in this regard. He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the audiogram results from 1959 and 1963 show hearing within normal limits bilaterally at entrance and separation. Furthermore, the record is devoid of objective evidence of any hearing loss until December 2010, many after service. Medical records from VAMC Kansas City, dated in October 1996, show the Veteran received outpatient treatment for vision problems. It was noted that his situation had become financially difficult. While exploring options for financial relief, it was noted that the Veteran was not eligible for pension, being a peace time Veteran. However, he was questioned concerning any injuries or problems he had in service for the purpose of applying for service connection for any disability related thereto. The Veteran recalled that he had two injuries or problems during service, which he stated were when he got lye in his eye and when he was hospitalized for a fever of 110 degrees. He did not mention tinnitus or hearing loss as being problems. He was encouraged to apply for service connection for the items recalled. He indicated he would probably apply through a Veterans Service Organization. The Board believes that it is reasonable to conclude that a Veteran who is in financial difficulty and who is exploring options for financial relief, including disabilities for which service connection might be granted, would recollect tinnitus and hearing loss, if they existed during service, because, when existing, they are of such a nature as to make one aware of their existence. Because, in October 1996, the Veteran did not recall the existence of tinnitus and hearing loss during service, under circumstances perculiar to causing one to focus on such recollection, and because of the very nature of tinnitus and hearing loss causing one to be aware of their existence, the Board concludes the Veteran's current recollection of hearing loss and tinnitus having existed during service is not credible. As such, the Board finds that any assertions by the Veteran as to possible etiology of his hearing loss to be less than credible. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, as mentioned, the medical evidence does not show treatment or diagnosis of problems associated with hearing loss until December 2010, nearly 50 years after service. In sum, the weight of the evidence is against the claim; there is no doubt to be resolved. The only medical opinion of record, the December 2010 VA examination, is negative; while the Veteran has expressed his belief that there is a nexus between service and current disability, he is not competent to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is not a situation of an observable cause and effect relationship, as the Veteran's hearing loss was diagnosed many years after service. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, while the Veteran is competent to report difficulty hearing, continuity of symptoms is not shown. The Veteran did not report that he was having trouble hearing in service and he denied any difficulties at separation. Moreover, the absence of evidence of hearing loss for many years after service also weighs against the claim. While the Veteran was exposed to excessive noise in service, such did not cause or contribute to his current hearing loss disability. Nevertheless, the Board recognizes that sensorineural hearing loss is also subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for sensorineural hearing loss can also be rebuttably presumed if it is manifest to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Service treatment records do not document any reports of hearing difficulties or problems with the Veteran's ears during service. The Board acknowledges that the absence of a documented hearing disability in service is not always fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). To the contrary, when the regulatory requirements for a disability are not met at separation, service connection may still be established through probative evidence that the current disability is related to service. See Hensley v. Brown, 5 Vet.App. 155, 159-60 (1993); see also 38 C.F.R. §3.303(d). However, such probative evidence has not been presented in this case. Indeed, there is no record of a hearing disability manifesting within the one year period after service, or for many years thereafter. In his August 1963 separation examination, the Veteran denied having any ear problems and his audiogram results was within normal limits. The Veteran was diagnosed with bilateral hearing loss in December 2010, approximately 50 years post service. While the Veteran now claims to have experienced hearing loss in service, the Board finds that the credibility of his current statements is outweighed by the evidence of record, i.e. his statements as to continuity are not credible. Accordingly, the Board finds that the preponderance of the evidence is against establishing a continuity of hearing loss symptomatology since service, and is against a showing that such a disability manifested to a compensable degree within the initial post-service year. Therefore, just as the Veteran may not prevail in his claim for hearing loss under a direct theory of entitlement, he also is not entitled to service connection for that disability on a presumptive basis. Tinnitus The Veteran contends that his tinnitus began while in service and continues to this day. As discussed above, this particular disability is capable of lay diagnosis. Moreover, lay evidence, standing alone, may suffice to prove nexus as a "valid medical opinion" is not strictly required to satisfy the third and final element of service connection. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Nevertheless, while lay evidence can serve to support a claim for service connection, lay assertions regarding medical matters such as an opinion on whether a disability is related to an injury or disease in service has no probative value when a lay person is not competent to offer such medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the present case, the Board finds that the Veteran's statements regarding tinnitus and its relation to his active duty service in this case lack the credibility necessary to afford it any probative value. Although the Veteran is competent to report tinnitus symptoms, and hence to identify their onset, his inconsistent statements render his lay testimony not credible. The Veteran's service treatment records show that on separation, the Veteran completed a Report of Medical History in August 1963. On that report, in section 20, which asked "have you ever had or have now," the Veteran checked "no" in the section for ear, nose or throat trouble. Medical records from VAMC Kansas City dated October 1996, as referenced in analysis above, causes the Board to conclude that the Veteran's current recollection of hearing loss and tinnitus having existed during service is not credible. As such, the Board finds that any assertions by the Veteran as to the existence of tinnitus during service to be less than credible. In December 1996, the Veteran filed a claim for compensation for service connection for eye loss. The Veteran did not include tinnitus or hearing loss when asked to list the nature and history of his disabilities on the application for benefits. In December 2006, the Veteran filed a claim for compensation for service connection for diabetes and mental problems as residuals of a high fever. When asked to list disabilities that are being claimed, the Veteran did not mention tinnitus or hearing loss as being one of them. The earliest mention of tinnitus in the Veteran's claims file is his October 2010 claim for compensation for hearing loss and tinnitus. The Veteran stated that he began experiencing hearing loss and ringing sounds in his ears while in service. The Board finds that the Veteran is less than credibility with regard to his claims of tinnitus. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements. Caluza v. Brown, 7 Vet. App. 498 510-11 (1995). In the present claim, the Veteran has stated that his tinnitus began in service in 1959, but fails to mention it in his separation examination in 1963, and in October 1996, December 1996 as well as in December 2006. During those times the Veteran made claims for VA benefits due to disabilities, but did not include tinnitus or hearing loss. The earliest mention of tinnitus by the Veteran was in 2010, approximately 50 years post-service. Considering his having filed previous claims over the past few decades, a simple failure on the Veteran's part to report such complaints is unlikely. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (noting that the absence of a notation in a record may be negative evidence if the fact at issue normally would have been recorded). The Board also finds that although the Veteran may be competent to state that he has ringing in the ears, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to causation. In the absence of demonstration of credible continuity of symptomatology or a competent clinical opinion relating the current tinnitus to service, the Board finds that service connection is not warranted. Nor does the record show that service connection is warranted on a presumptive basis since, unlike sensorineural hearing loss, tinnitus and other hearing disorders fall outside the scope of 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs