Citation Nr: 1330550 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-41 377 ) 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 Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. In this regard, while additional private and VA treatment records are associated with the Veteran's Virtual VA file, such do not pertain to his hearing loss or tinnitus. In an April 2013 statement, the Veteran's representative waived RO consideration of any additional evidence added to the record. In August 2013, the Board obtained a copy of the Veteran's November 2008 VA examination which was missing from the claims file. That examination report, which was considered by the RO in the January 2009 rating decision, is essentially duplicative of other evidence in the claims file and such was commented on by the Veteran's representative. Therefore, the Board may appropriately consider this evidence and proceed with the issuance of this decision. 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. Bilateral hearing loss was not present in service, manifested within one year of the Veteran's discharge from service, or shown to be causally or etiologically related to any disease, injury, or incident in service. 2. Tinnitus was not present in service or shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2008 letter, sent prior to the initial unfavorable decision issued in February 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. This letter also informed the Veteran of what type of information and evidence was needed to establish disability ratings and effective dates in accordance with Dingess/Hartman, supra. Accordingly, VA has satisfied its duty to notify under the VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records and post-service reports of VA treatment. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in November 2008, September 2009 and December 2010. While the November 2008 and September 2009 VA examinations did not yield usable test results, and therefore, the examiners did not offer etiological opinions, the December 2010 VA examination report includes test results and an etiological opinion that the Board finds is adequate to decide the issues. The opinion considered the full record, to include the Veteran's service treatment records, lay statements, and current medical condition. The December 2010 VA examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided an opinion supported by a complete rationale, relying on, and citing to, the records reviewed. Moreover, the expert offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, 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; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) . The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Factual Background & Analysis The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he attributes to exposure to gunfire noise while serving in Vietnam. As the Veteran was stationed in Vietnam, and such noise exposure is consistent with the conditions of his service, the Board finds that he was exposed to noise during military service. 38 U.S.C.A. § 1154(a). Service treatment records include a February 1969 enlistment examination report, in which clinical evaluation of the Veteran's ears was normal and he denied having symptoms of running ears, hearing loss, or any ear trouble. Audiologic testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 LEFT 5 5 5 5 Service treatment records are silent for complaints of hearing loss or tinnitus. A September 1970 separation examination revealed clinically normal ears and a whispered voice test of 15/15 for the right and left ears. Audiologic testing was not performed at separation. Post-service, the first time the Veteran sought treatment for his hearing loss was in February 2004, at which time he was diagnosed with low frequency sensioneural hearing loss in the right ear and high frequency sensioneural hearing loss in the left ear by a VA clinician, though treatment notes do not include audiogram results. At a follow-up appointment in March 2004, the Veteran denied tinnitus and reported a history of occupational noise exposure from machinery. It was noted that the Veteran was not interested in hearing aids, for which he was a borderline questionable candidate. In April 2008, the Veteran filed his claim for service connection for bilateral hearing loss and tinnitus. In November 2008, the Veteran underwent a VA examination, where the examiner noted to following: Test results are not reported as they are considered to be invalid. Responses to pure tone stimuli were inconsistent and not compatible with his conversational ability. There was poor inter-test agreement. The Veteran was re-instructed and re-tested several times without improvement. Although pleasant in demeanor the Veteran failed to comply with test procedures. In September 2009, the Veteran was again evaluated. Once more, his test scores were unreported, as the VA examiner noted discrepancies similar to those listed during the November 2008 examination, stating, "[t]his is indicative of a functional hearing loss indicating the Veteran misrepresented his hearing." In April and October 2009, the Veteran submitted statements disagreeing that he was re-instructed or re-tested, or that he failed to comply with testing procedures during the VA examinations. In December 2010, the Veteran underwent another VA examination. He reported to the examiner that he had hearing difficulties for the past couple years, and that he felt his right ear was worse than his left. The Veteran reported tinnitus, which he stated he first noticed two to three years ago. He reported in-service noise exposure, during which he did not wear hearing protection. The Veteran detailed 15 years of post-service occupational noise exposure from operating heavy equipment. Audiological examination revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 25 LEFT 25 25 30 45 55 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear. These results indicate that the Veteran meets the threshold requirements of 38 C.F.R. § 3.385 for the left ear only. He was diagnosed with normal hearing for the right ear and moderate high frequency sensorineural hearing loss in the left ear. The examiner noted that the Veteran's service treatment records showed normal hearing at enlistment, and a normal whisper test at separation with no complaints of hearing loss or tinnitus. He further observed that the Veteran reported only noticing hearing loss and tinnitus for the past few years. The examiner therefore opined that hearing loss and tinnitus were not at least as likely as not the result of military noise exposure. Hearing Loss Based on the above, the Board finds that the evidence does not support an award of service connection for bilateral hearing loss. At the outset, the Board notes that the evidence shows that the Veteran only has a current hearing loss disability in the left ear for VA purposes, as per the December 2010 VA examination. 38 C.F.R. § 3.385. Though the February 2004 VA treatment note indicates that the Veteran had sensioneural hearing loss in both ears, such is before the appeal period. For the purposes of establishing the current disability element necessary to establish entitlement to service connection for hearing loss in both ears, the Veteran must have met the criteria for hearing loss in both ears at some time during the appeal period (i.e., any time after April 28, 2008). See McClain v. Nicholson, 21 Vet. App. 319 (2007). However, in Romanowsky v. Shinseki, 26 Vet.App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Therefore, while there may be conflicting evidence regarding whether the Veteran has a current right ear hearing loss disability for VA purposes, assuming, arguendo, that he has such a disability, the Board finds that his claim fails as the preponderance of the evidence is against a finding that a bilateral hearing loss is related to his military service. As a diagnosis of hearing loss was not shown until February 2004, the Veteran is precluded from a finding of presumptive service connection since his bilateral hearing loss did not manifest to a compensable degree within one year of service discharge. Moreover, he has not alleged a continuity of bilateral hearing loss symptomatology since service. Specifically, as he reported at the December 2010, he did not note hearing difficulties until the prior few years. Moreover, there is no lay or medical evidence revealing chronicity and/or continuity of hearing loss since 1970, when the Veteran was discharged from service. Therefore, service connection for bilateral hearing loss on a presumptive basis, to include based on continuity of symptomatology is not warranted. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. Direct service connection has also not been demonstrated. In so finding, the Board accords the December 2010 VA examiner's opinion high probative value. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the December 2010 VA examiner considered the Veteran's history of in-service and post-service noise exposure as well as his lay reports regarding hearing loss, reviewed the claims folder including the service treatment records, and concluded that it was not likely that the Veteran's bilateral hearing loss was caused by or the result of his military service. The examiner reasoned that the separation examination report failed to reveal any indication of hearing deficit during service, and that the Veteran reported only noticing hearing loss and tinnitus for the past few years. This opinion is found to carry significant weight, as it was based on a comprehensive review of the lay and clinical evidence on file dated from the Veteran's period of service, forward; and was supported by both clinical evidence pertaining to the specific case as well as medical expertise. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). In addition, the Veteran has not provided any competent medical evidence to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board has also considered the Veteran's lay assertions as to the etiology of his bilateral hearing loss, but finds that such is beyond his competence as a lay person to make and are not consistent with the objective evidence of record, which does not establish continuity and chronicity of hearing loss since service or a nexus between currently manifested hearing loss and acoustic trauma sustained in service. See Davidson v. Shinseki, 581 F.3d 1313, (Fed Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Specifically, the question of causation, or the relationship between the Veteran's in-service noise exposure and his current hearing loss, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Id.; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Overall, the evidence is not in relative equipoise, as there is evidence of normal hearing acuity at separation from service in 1970, and a more than 30-year gap between the Veteran's discharge from service and indications of bilateral hearing loss. Moreover, the most probative evidence of record addressing the etiology and onset of the Veteran's hearing loss weighs against service incurrence. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. Tinnitus Tinnitus has been defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). See also Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004). In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Accordingly, it is within the Veteran's competency to identify symptoms of tinnitus and the condition is therefore established through the Veteran's lay reports. Moreover, the December 2010 VA examiner noted the existence of tinnitus. The clinical evidence includes service treatment records which are entirely negative for any mention of tinnitus or symptoms associated therewith, including at service separation. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the Veteran). Moreover, the Veteran denied having tinnitus in a March 2004 VA treatment note. Thereafter, the earliest documentation of tinnitus was during the December 2010 VA examination, with the Veteran reporting that he had only noticed tinnitus within the past few years. As explained above, the December 2010 VA examiner recorded the Veteran's history of in-service and post-service noise exposure as well as his lay reports as to the onset of tinnitus, reviewed the claims folder including the service treatment records, and concluded that tinnitus was not at least as likely as not the result of military noise exposure. This opinion is found to carry significant weight, as it was based on a comprehensive review of the lay and clinical evidence on file dated from the Veteran's period of service, forward; and was supported by both clinical evidence pertaining to the specific case as well as medical expertise. See Nieves-Rodriguez, supra; Stefl, supra. Therefore, Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). The Veteran has not provided any competent medical evidence to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Additionally, the Board finds that the lay assertions from the Veteran as to the etiology of his tinnitus are beyond his competence as a lay person to make and are not consistent with the objective evidence of record, which does not establish the existence of tinnitus since service or a nexus between currently manifested tinnitus and acoustic trauma sustained in service. See Davidson v. Shinseki, 581 F.3d 1313, (Fed Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Specifically, the question of causation, or the relationship between the Veteran's in-service noise exposure and his current tinnitus, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Id.; see also Woehlaert, supra. Overall, the evidence is not in relative equipoise, as there is evidence of normal hearing acuity and clinical evaluation of the ears at separation from service in 1970, and a more than 30-year gap between the Veteran's discharge from service and indications of tinnitus. Moreover, the most probative evidence of record addressing the etiology and onset of the Veteran's tinnitus weighs against service incurrence. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs