Citation Nr: 1330260	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  12-17 496A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Acosta, Associate Counsel





INTRODUCTION

The Veteran had active service from October 1966 to September 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of October 2011 rating decision of the Lincoln, Nebraska, regional office (RO) of the Department of Veterans Affairs (VA).

The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case.


FINDINGS OF FACT

1. Bilateral hearing loss was not shown in service or within one year of service discharge; and, the preponderance of the evidence fails to establish an etiological relationship between the Veteran's diagnosed hearing loss and his active service.

2. Tinnitus was not shown in service; and, the preponderance of the evidence fails to establish an etiological relationship between the Veteran's tinnitus and his active service.


CONCLUSIONS OF LAW

1. The criteria for service connection for hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).  

2. The criteria for a grant of service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). 

The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120   (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

In the instant case, notice was provided to the Veteran in August 2011, prior to the initial adjudication of his claim in October 2011. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). The RO associated the Veteran's service treatment records, private treatment records identified, and VA treatment records with the claims file. Additionally, the Veteran has not identified any treatment records aside from those that are already of record.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.

In September 2011, VA provided the Veteran with a medical examination and obtained a medical opinion addressing whether his current hearing disability and tinnitus had an onset during or was caused by active service.  The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's bilateral hearing loss and tinnitus. The examiner provided a sufficiently detailed description of these disabilities, and the examiner provided an analysis to support his opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2013), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show:  "(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-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

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. See 38 C.F.R. § 3.303(d).  In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

Service connection for bilateral hearing loss will refutably be presumed if it is manifest in-service 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).  Alternatively, under 38 C.F.R. § 3.303(b), a nexus to service will be established where there is continuity of symptomatology since service but only with respect to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period).  The tenets of 38 C.F.R. § 3.303(b) apply to the claim for service connection for hearing loss but not the claim for tinnitus.

For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385.

Lay evidence may also be competent, in some situations to establish a nexus between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The courts have not explicitly laid out the circumstances in which lay evidence would be sufficient, but the case law suggest that a lay person could note the immediate consequences of an in-service injury. See Trafter v. Shinseki¸ No. 10-3605, slip op. at 17 (Vet. App. Apr. 29, 2013) (veteran's report of depression following alleged failure to promptly treat him was evidence indicating a relationship between an injury and current disability). 

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).

Merits of the Claim

The Veteran contends his current bilateral hearing loss and tinnitus is related to his exposure to loud noises in service. Specifically, he relates the disabilities to his exposure to rifle fire without hearing protection at the rifle range and his military occupation which included wearing a hearing set searching and listening to radio signals and telemetry signals. 

A review of the record shows that the Veteran has been diagnosed as having bilateral hearing loss for VA purposes.  He has also been diagnosed as having tinnitus.  Holton element (1) is met.

Turning to Holton element (2), the incurrence or aggravation of an injury or disease in service, the Board notes the Veteran's service treatment records are absent any evidence of complaints, treatment, or diagnosis of hearing loss. The Veteran specifically denied having any ear trouble at discharge and made no reference to hearing loss or tinnitus.  His discharge examination showed that his hearing was normal for VA purposes 38 C.F.R. 3.385 (2013).  Indeed, when comparing audiology testing between service enlistment and discharge, there is an actual improvement in the Veteran's overall hearing acuity.  

The Board notes that prior to November 1, 1967, service department audiometric test 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 in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.  The results of the Veteran's June 1966 induction examination were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
15
15
10
5
LEFT
30
25
20
10
25

Conversely, the Veteran's May 1970 separation examination recorded audiometric results as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
0
0
10
LEFT
10
0
10
10
15

That said, the Veteran contends that he was exposed to noise as an intercept operation analyst and at the rifle range. The Veteran is competent to report exposure to noise. He is also credible in this regard as the evidence shows the Veteran's occupation in service was that of intercept operation analyst.  This is a military occupational specialty consistent with exposure to loud noises.  38 U.S.C.A. § 1154(a).  Thus, while an in-service injury is not necessarily established, the Board finds that the Veteran has presented sufficient evidence showing that he was exposed to noise in service.

Having determined that the Veteran had in-service noise exposure and has a current diagnosis of bilateral hearing loss and tinnitus, the final question before the Board is whether the Veteran's current hearing loss and tinnitus is related to his active service, to include noise exposure (Holton element (3)). A relationship or "nexus" to service may in this case be established on either a direct basis or presumptive.  See 38 C.F.R. §§ 3.303, 3.309 (2013).  There is conflicting evidence on this point.

Weighing in favor of the Veteran's appeal is an April 2012 private medical opinion.  In this examination, M.D. Omar, MD, stated:

[The Veteran] has a history of persistent and chronic tinnitus, as well as hearing loss. He does note that he was in the military from 1966 to 1970 where he was working with high frequency equipment and headphones. He then developed symptoms of ringing as well as hearing loss. I believe that his exposure to high-frequency noise related to his job in the military could certainly be related to his symptoms.

The opinion from Dr. Omar is in direct conflict with the report of a September 2011 VA audiology examination.  After conducting an audiological evaluation, interviewing the Veteran, and reviewing the claims file, to include the service treatment records, the VA examiner provided the following opinion as to the etiology of the Veteran's current hearing senorienural hearing loss diagnosis:

This Veteran's hearing has not gotten worse more than 10 dB from his entrance to his exit physical at least a[t] one of the ratable frequencies. According to the literature,* one can expect a threshold change to vary from test to test for as much as 10dB. Therefore, for a threshold shift to be considered a significant change it must change more than10 dB. Since this Veteran's hearing has not [negatively] changed more than 10 dB it is not as likely as not there has been a significant change in hearing. It is not likely the current hearing loss was from military noise exposure. (Emphasis added).

Exposure to loud noise can also damage the structure of the hair cells resulting in hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent hearing loss exists. Since the damage is done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss.

In regard to the Veteran's reports of tinnitus, the VA examiner provided the following opinion as to its etiology.

There is a high correlation between hearing loss, tinnitus and noise exposure. The presence of a ratable hearing loss from the service or audiometric configuration consistent with noise exposure is a strong indication that any reported tinnitus was also from noise exposure. Conversely normal hearing from the service strongly suggest any reported tinnitus is less likely to be from noise exposure. Since the [V]eteran's hearing was normal at separation from the service it is less likely as not the reported tinnitus was from military noise exposure.

The Board has considered both medical opinions and finds that the September 2011 VA examination report carries greater probative value.  Dr. Omar's report did not involve a review of the Veteran's claims file.  While not in and of itself outcome determinative, emphasis is placed on the fact that neither hearing loss nor tinnitus were demonstrated in service or for many years later.  This fact was highlighted by the VA examiner in her report and was a partial basis for the negative opinion she provided.  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).  The VA examiner also provided rationale for her opinion, which included a citation to supporting medical literature.  Conversely, Dr. Omar provided no rationale or explanation for his opinion.  The speculative nature of Dr. Omar's opinion, i.e., the Veteran's in-service noise exposure "could" be related to his hearing loss and tinnitus, further lessens the value of that opinion.  Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship).

Consideration has been given to the Veteran's lay assertion that his hearing loss and tinnitus are related to his in-service noise exposure.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, hearing disorders, including sensorineural hearing loss and tinnitus, fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Sensorineural hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that audiological testing and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Board does acknowledge that the Veteran is deemed to be capable of diagnosing tinnitus as it is a purely speculative complaint.  Charles v. Principi, 16 Vet. App. 370 (2002).  

However, while the Veteran is competent to report diminished hearing acuity and buzzing/noise in his ears (tinnitus), there is no indication that the Veteran is competent to etiologically link these disorder to his active service, to include in-service noise exposure.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disabilities.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  This lay evidence does not constitute competent medical evidence and lacks probative value.

Notwithstanding the Veteran's lack of competence in rendering a medical opinion in this matter, the Board refers to the 41 year time span between the Veteran's first report of hearing loss and tinnitus and the Veteran's separation from service. The records shows that the Veteran first reported a hearing loss and tinnitus in his July 2011 claim for VA benefits while his records show that his separation from service occurred in September 1970.  Additionally, at the May 1970 separation examination, as discussed, there is a medical finding that the Veteran has normal hearing and no reference to tinnitus.  Indeed, the Veteran has not reported that his hearing loss or tinnitus had their onset during his active service.  He even submitted a questionnaire in July 2011 wherein he indicated that he first noticed his tinnitus in the early 1980s, which approximately 10 years after service.  Thus, to the extent that he now claims that both conditions began in service, there is significant evidence that undermines that statement.

As the negative VA opinion on the question of nexus carries the most probative weight of all of the opinions for consideration, the preponderance of the evidence weighs against a finding that the Veteran's current  bilateral hearing loss and tinnitus are related to the acoustic trauma sustained in service.  Service connection for bilateral hearing loss and tinnitus is not warranted on a direct basis. 

Further, as stated above there is no credible or competent evidence to support that the Veteran developed his hearing loss or tinnitus within a year after his service. Therefore, the Veteran cannot prevail on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, under 38 C.F.R. § 3.303(b) (2013), a nexus to service will be established where there is continuity of symptomatology since service.  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Board finds that due to the lack of evidence of symptoms until many years following service continuity of symptomology in not shown.

The Board considered the applicability of the benefit of the doubt doctrine.  However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). 


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
MICHEAL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs