Citation Nr: 1330288 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 13-15 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from August 1959 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss is not shown to have been present during his military service, or for many years thereafter, nor is it shown to be the result of any incident therein. 2. The Veteran's current tinnitus is not shown to be the result of his military service or any incident therein. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's October 2012 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the October 2012 letter provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the RO satisfied the notice requirements with respect to the issues on appeal. The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records, and the Veteran has not identified any VA or private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In April 2013, a VA audiological examination was conducted and a medical opinion obtained. The VA examination was performed by an examiner who reviewed the history of the bilateral hearing loss and tinnitus with the Veteran, examined the Veteran, and included rationale for the conclusions reached. This examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not claimed that this examination was inadequate. There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. 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 this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be established for 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 line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For the 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Historically, the Veteran served on active duty in the Army from August 1959 to August 1962. His report of separation, Form DD 214, noted that he served an air defense missile crewman. Thus, the record clearly establishes that the Veteran was exposed to noise during service. The Veteran's service treatment records are silent as to any complaints or diagnoses of hearing loss or tinnitus. His July 1962 separation examination noted that his ears were normal on physical examination. An audiological evaluation performed at that time revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 0 (10) - 0 (5) LEFT 0 (15) 0 (10) 0 (10) - 0 (5) (Note: The July 1962 audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. 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.). On a medical history report, completed pursuant to his separation examination in July 1962, the Veteran denied having a history of running ears or ear trouble. In September 2012, the Veteran filed his present claim seeking service connection for bilateral hearing loss and tinnitus. He reported having pain in his ears while learning to shoot rifles and pistols at the shooting range during basic training, and that he continued to have ringing in his ears ever since. In April 2013, a VA audiological examination was conducted. The VA examiner noted the Veteran's long standing history of tinnitus and bilateral hearing loss. The report noted the Veteran's inservice history of noise exposure as an air defense missile crewman, as well as exposure to high noise levels from guns, tanks, jeeps and trucks during service. The report also noted post service noise exposure while working as a cabinetmaker, in construction, and as a motorcycle mechanic; as well as recreational noise exposure from hunting and target shooting. The Veteran reported that he "always" utilized hearing protection devices since the 1960s. An audiological evaluation was conducted and revealed findings of bilateral hearing loss as defined by VA pursuant to 38 C.F.R. § 3.385. The Veteran reported having had tinnitus since his military service, but did not provide any specifics regarding the date or circumstances relating to the onset. The report concluded with diagnoses of bilateral sensorinueral hearing loss and tinnitus. The VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were caused by or a result of his military noise exposure. In support of this opinion, the VA examiner noted that the Veteran's separation examination showed normal hearing sensitivity, bilaterally, upon his discharge from the service. The VA examiner further noted that based on an Institute of Medicine Report on noise exposure in the military, noise induced hearing loss occurs immediately and does not have a delayed onset of weeks, months, or years after the exposure event. The VA examiner also noted the Veteran's significant post service history of both occupational and recreational noise exposure, and the lack of any documented complaints of tinnitus and hearing loss during his military service. A. Bilateral Hearing Loss Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for bilateral hearing loss. The Veteran's service treatment records are silent as to any complaint or diagnosis of bilateral hearing loss. The Veteran's July 1962 separation examination included normal audiological findings, bilaterally. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993)(Normal hearing is from 0 to 20 decibels, and higher levels indicate some degree of hearing loss.). Moreover, the Veteran denied having any history of running ears or ear trouble on a medical history report completed at that time. Thereafter, a complaint or diagnosis of bilateral hearing loss was not shown until the April 2013 VA audiological examination, over 50 years after the Veteran's discharge from military service. This period without any complaints or treatment is evidence that weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., exposure to loud noise service, and reporting to sick call. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an other organic disease of the nervous system and is such a chronic disease. See 38 CFR 3.309(a); M21-1MR III.iv.4.B.12.a. However, there is no diagnosis of sensorineural hearing loss during service; the medical evidence of record reflects that the Veteran had normal hearing upon separation examination, which was after his inservice noise exposure. There is also no evidence that the Veteran had a diagnosis of sensorineural hearing loss within the first year of separation from service. The earliest diagnosis of sensorineural hearing loss is in April 2013, over five decades after the Veteran separated from service. Even assuming the Veteran's assertions do constitute a continuity of symptomatology, sensorineural hearing loss was not noted during service, making it impermissible to establish service connection for the chronic disease of sensorineural hearing loss as an other organic disease of the nervous system on that basis. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The examiner who conducted the April 2013 VA audiological evaluation opined that it was less likely than not that the Veteran's current bilateral hearing loss was related to his military service. Consequently, there is no competent evidence linking the current hearing loss to noise exposure during service. Absent such a nexus, service connection cannot be established. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The preponderance of the evidence is against the claim for service connection for hearing loss; there is no doubt to be resolved; and service connection is not warranted. B. Tinnitus The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, the Veteran contentions that he has had tinnitus since his military service is outweighed by the remaining evidence of record. The Veteran's service treatment records are silent as to any complaints or treatment for tinnitus during service. The Veteran's July 1962 separation examination noted that his ears were normal, and the Veteran denied having any ear problems on the July 1962 medical history report completed pursuant to his separation from service. Following his discharge from the service, the first evidence of any kind referencing tinnitus is his claim filed in October 2012, which is over 50 years after the Veteran's separation from service. Finally, the VA examiner, after reviewing the Veteran's claims file, the history of this condition with the Veteran, and conducting an examination of the Veteran, opined that it was less likely than not that his current tinnitus was related to his military service. Because of the absence of a notation of tinnitus on his service treatment records; the absence of any post service medical treatment for tinnitus for more than 50 years after his discharge from the service; and the VA examiner's opinion that the Veteran's tinnitus was less likely than not related to his military service, the preponderance of the evidence is against the Veteran's claim. There is no doubt to be resolved and service connection for tinnitus is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs