Citation Nr: 1330418 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-01 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a right ear hearing loss disability. 3. Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to April 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In August 2012, the Veteran submitted additional evidence that was not accompanied by a waiver of initial RO consideration. The evidence, as it relates to the right ear hearing loss, is essentially duplicative of evidence already before the Board. The claim for tinnitus is being granted. Therefore, a remand for initial RO consideration of the evidence is not required. See 38 C.F.R. § 20.1304. The issue of entitlement to service connection for a left ear hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Tinnitus had onset in service. 2. A current right ear hearing loss disability under 38 C.F.R. § 3.385 is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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, 484-86 (2006) (notice of the elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by a letter dated in March 2010. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's service treatment records and VA medical records. A VA examination was conducted in May 2010. The examination is adequate, but only with respect to the issue of entitlement to service connection for a right ear hearing loss disability. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran is required to comply with the duty to assist. Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level indicates some degree of hearing loss, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply. To establish service connection for hearing loss or tinnitus, the Veteran is not obliged to show that the disability was present during active military service. However, if there is insufficient evidence to establish that the claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Facts The Veteran served aboard the USS Coral Sea with a military occupational specialty of engineering, damage controlman. His service treatment records do not reflect complaints of hearing loss or tinnitus. A June 1986 induction audiogram showed puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 5, -5, -5, -5, and 0 respectively, in the right ear. A July 1987 annual audiogram showed puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 15, 5, 5, 0, and 0 respectively, in the right ear. On a separation examination in March 1990, an audiogram showed puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 5, 0, 0, and 0 respectively, in the right ear. Post-service VA treatment records do not reflect audiometric findings that establish a right ear hearing loss disability consistent with 38 C.F.R. § 3.385. At a VA examination in May 2010, an audiogram showed puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 10, 10, 10 and 15 respectively, in the right ear. The speech recognition score for the right ear was 96 percent. The examiner indicated that the right ear hearing was clinically normal. The VA examiner also diagnosed bilateral tinnitus. The examiner indicated that the Veteran reported he had tinnitus for a long time, but could not recall when he first noticed it. The examiner opined that the tinnitus was not the result of miliary service because the Veteran's reported history failed to establish a close association between the time of the tinnitus onset and his period of military service. At his hearing in August 2012, the Veteran testified that he experienced severe ringing in his ears during service. He explained that he participated in main space fire drills while training to be a firefighter. Hearing protection was not used during the drills because it interfered with the oxygen masks. He recalled that his ears would hurt after the drills. He also recalled being subjected to loud high-pitched noise from the generator rooms and from sleeping underneath the forward part of the ship where aircraft was catapulted off. The Veteran also provided clarification regarding the May 2010 VA examination report. He stated that he told the examiner that his tinnitus had been present his "whole adult life" because he entered the service when he was only 17 years old and the tinnitus started when he was in the military. He reported that the tinnitus continued after service and he denied exposure to excessive noise after service. In August 2012 the Veteran submitted records from Dr. Brown, a private audiologist. Dr. Brown's August 2012 audiogram showed puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 10, 5, 10, and 10 respectively, in the right ear. Dr. Brown determined that the Veteran had normal right ear thresholds. Speech discrimination was 100 percent. In a letter that accompanied the audiogram, Dr. Brown indicated that based on the Veteran's reported history and subsequent onset of symptoms during his time in the military, it is more likely than not that the tinnitus is a result of noise exposure. He opined that the tinnitus has a 50 percent or greater probability of being caused by military noise exposure (e.g. the drills and the catapult noise). A. Tinnitus After reviewing the available evidence, and resolving in any remaining doubt in favor of the Veteran, service connection for tinnitus is warranted. A current tinnitus disability has been established based on the May 2010 VA examination report. Further, given the Veteran's military occupational specialty of damage controlman, he was likely exposed to noise while in service. Such exposure is consistent with the circumstances and conditions of that occupational specialty. 38 U.S.C.A. § 1154(a). The record includes evidence that both favors and opposes a finding of a causal nexus between the Veteran's current tinnitus and his noise exposure in service. The May 2010 VA opinion is insufficient for adjudication of the claim as the examiner appears to have based his opinion on an inaccurate factual premise. The examiner noted there was no close association between the time of the onset of Veteran's tinnitus and his period of military service. However, the Veteran has testified the actual onset of the tinnitus was in service, and it has continued since then. Based on the Veteran's testimony, which the Board finds to be both competent and credible, it is apparent that the VA examiner did not have an accurate representation of the Veteran's medical history. Therefore, the examiner's medical opinion is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The August 2012 private audiology opinion is favorable to the Veteran's claim. While it is not accompanied by a clinical rationale explaining the basis for the audiologist's opinion, the opinion is consistent with the Veteran's history and there is no probative medical opinion to the contrary. Moreover, the Veteran's competent and credible hearing testimony of ringing in the ears during service, with recurrent symptoms since, strongly supports a finding of a causal nexus in this case. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b). B. Hearing Loss, Right Ear The Veteran asserts that his right ear hearing loss is due to noise exposure in service. None of the audiometric test results in service showed a degree of right ear hearing loss which meets the regulatory requirements for establishing a hearing loss "disability," according to VA regulations set forth at 38 C.F.R. § 3.385. In other words, the Veteran is not shown to have had a right ear hearing loss disability (for VA compensation purposes) in service. Nevertheless, the Veteran may establish service connection for a current hearing disability by submitting evidence that his current hearing loss disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In this case, there is no evidence of a current right ear hearing loss disability. The May 2010 VA audio examination and Dr. Brown's August 2012 audiometric test results do not reflect a current right ear hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385. Auditory thresholds were not 26 decibels or more in at least three of the frequencies, and the speech recognition scores were 96 percent and 100 percent, respectively. Both the VA examiner and Dr. Brown indicated that the Veteran's hearing in the right ear is clinically normal. The VA examiner and Dr. Brown's opinions are persuasive medical evidence against the claim on the question of whether there exists a current right ear hearing loss disability under 38 C.F.R. § 3.385. The VA examiner and Dr. Brown are both audiologists, who are qualified through education, training, or experience to offer such findings. The Veteran has not otherwise identified or provided existing audiometric testing results that meet the requirements of 38 C.F.R. § 3.385 and he is not competent to show that he has a hearing loss disability pursuant to 38 C.F.R. § 3.385. The Veteran is competent to describe impaired hearing, which is within the realm of his personal experience. 38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A hearing loss disability is not a simple medical condition because the diagnosis is based on results of audiology testing that meet the standards of hearing loss disability under 38 C.F.R. § 3.385. A hearing loss disability under 38 C.F.R. § 3.385 is also not a condition under case law that has been found to be capable of lay observation. For these reasons, the Veteran, as a layperson, is not competent to state that his level of impaired hearing reaches the level of the legal standard of a hearing loss disability for the purpose of VA disability compensation under 38 C.F.R. § 3.385. In addition, there was no contemporaneous medical diagnosis of a right ear hearing loss disability for the purpose of VA disability compensation under 38 C.F.R. § 3.385 in service; and no medical professional has diagnosed him with a current right ear hearing loss disability under 38 C.F.R. § 3.385. In summary, the objective audiometric evidence does not support the Veteran's assertion that he has a current right ear hearing loss disability for which service connection is warranted. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a right ear hearing loss disability is denied. ORDER Service connection for tinnitus is granted. Service connection for a right ear hearing loss disability is denied. REMAND The Veteran asserts that his left ear hearing loss is due to noise exposure in service. He was afforded a VA audiology examination in May 2010 in connection with his claim. A VA examiner diagnosed a left ear sensorineural hearing loss disability and opined that the left ear hearing loss is not related to noise exposure in service. The Board finds that the May 2010 VA medical opinion is insufficient for adjudication of the claim as the examiner based his opinion solely on the fact that the Veteran's hearing acuity was normal at discharge. The Board further observes that the examiner failed to provide any discussion about the possible significance of the decibel threshold shifts demonstrated between the June 1986 induction audiogram and the July 1987 annual audiogram, which were documented on the July 1987 audiogram report. A review of the audiogram findings recorded in March 1990 is also required, i.e., determining whether there is a threshold shift or not. In light of these concerns, a new opinion is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding private treatment records pertaining to his left ear hearing loss disability. After securing the necessary authorization, obtain those records and any pertinent VA treatment records since April 2011. Any negative response must be in writing and added to the claim file. 2. After obtaining any additional records, return the claim file to the examiner that provided the examination in May 2010 for an addendum. If that examiner is unavailable, the claim file should be sent to another VA examiner with appropriate expertise. The examiner is to render an opinion as to whether it is at least as likely as not that the Veteran's left ear hearing loss had onset during service; or, is causally related to active service; or, manifested within a year of discharge. A complete rationale for the opinion must be provided. The rationale is to include discussion of the clinical significance, if any, of the apparent threshold shifts from induction in 1986 to the annual evaluation in 1987, and from the annual evaluation in 1987 to separation in 1990. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Then readjudicate the claim. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. Then return the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs