Citation Nr: 1330690 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-26 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1956 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2012, April 2013, and July 2013 the Board remanded the case for further evidentiary development. The case has been returned to the Board for disposition. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a bilateral hearing loss disability that is etiologically related to a disease, injury, or event in service. 2. The preponderance of the evidence is against finding that the Veteran has a tinnitus disability that is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in and is not otherwise related to active service, nor may it be presumed to have occurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. A tinnitus disability was not incurred in and is not otherwise related to active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in November 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. The Veteran has not indicated that he has received treatment for his hearing problems with the VA and there is no evidence in the record to suggest that any relevant VA treatment records are missing. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided a VA examination in December 2012, with addenda opinions in January 2013 and July 2013. In the December 2012 VA examination report, the VA examiner diagnosed bilateral hearing loss and tinnitus, but indicated that he could not reach a conclusion as to etiology without resort to speculation. In January 2013 and July 2013 addenda opinions, however, the examiner concluded that it was less likely than not that the Veteran's hearing loss and tinnitus were caused by or the result of his military service. In the July 2013 addendum, the examiner provided a rationale for the expressed opinions. Based on the foregoing, the Board finds the December 2012 VA examination report, with the January 2013 and July 2013 addenda opinions, in total to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In that regard, the Board acknowledges that the July 2013 addendum did not include a discussion of conversions from the ASA to ISO standard of evaluation with respect to any threshold shifts during service. As will be discussed in greater detail below, after converting from ASA to ISO standards the Veteran's hearing acuity showed several threshold shifts during service. However, in the previous January 2013 addendum opinion the examiner had indicated that the observed in-service threshold shifts appeared to be transient in nature due to the fluctuating nature of the Veteran's audiometric testing results. Based on the January 2013 and July 2013 addenda contents, the Board does not find the examiner's failure to discuss any ASA to ISO conversions or threshold shifts in the July 2013 addendum renders that opinion inadequate. Based on the December 2012 notice letter, the December 2012 VA examination report, January 2013 and July 2013 addenda, and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its October 2012, April 2013, and July 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In the instant case, there is no presumed service connection because the Veteran was not diagnosed with a hearing loss disability within one year of service; indeed, it was not diagnosed until decades after service. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id at 159. 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, 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. Here, the Veteran alleges that he has current bilateral hearing loss and tinnitus due to in-service noise exposure. Specifically, the Veteran asserts that he had significant noise exposure from working on a flight line, from jet engines, from other large machines, and from gun shots. The Veteran acknowledges that he used double hearing protection during periods of noise exposure, particularly while on the flight line. The Veteran's DD-214 confirms his MOS as an Aircraft Maintenance Superintendant and Tactical Aircraft Maintenance Technician. Given the duties associated with these positions, exposure to significant acoustic trauma is likely and may be presumed. With respect to the Veteran's service treatment records, a January 1966 Report of Medical History documented resolving bilateral otitis media. A March 1966 service treatment record documented otitis media of the left ear that was causing pain. The treatment provider noted that the Veteran had suffered from two recent ear infections in January 1966. In a September 1972 Report of Medical History, the Veteran denied a history of hearing loss or ear trouble. In a May 1978 Report of Medical History at the time of retirement, however, the Veteran did report a history hearing loss, while denying a history of other ear trouble. In addition, several audiograms relatively early in the Veteran's service included findings that would represent a hearing loss disability at one or more frequencies. However, the last such finding was an audiogram referenced in August 1975, at which time audiometric testing did not show a hearing loss disability for VA purposes in any ear at any frequency. From that time, to include at the Veteran's May 1978 retirement examination, the Veteran did not have a hearing loss disability for VA purposes in either ear at any frequency. After service, the Veteran's treatment records do not indicate a medical diagnosis of bilateral hearing loss and tinnitus until December 2012, over 30 years after separation from service. The Veteran was afforded a VA examination in December 2012. At that time, the Veteran reported difficulty understanding other people and that there appeared to be a dead spot in talking to people that prevented him from understanding all they had to say. The Veteran reported noise exposure from jet engines, gun shots, and machinery and that he worked as a maintenance superintendant on the flight line. He denied post-service recreational or occupational noise exposure. As to tinnitus, the Veteran reported that his tinnitus began around 1980, but was unable to provide a more specific date or the circumstances of onset. The examiner diagnosed a bilateral hearing loss disability and tinnitus, but indicated that he was unable to provide an opinion without resort to speculation because the claims file had not been provided. Following a review of the claims file, the examiner provided an addendum opinion in January 2013. The examiner noted that the service treatment records showed fluctuating hearing thresholds up to a moderate hearing loss, threshold shifts appeared to be transient in nature. The examiner concluded that it was less likely that the Veteran's hearing loss and tinnitus were caused by or the result of in-service noise exposure. The rationale was that the Veteran's hearing thresholds at separation were within normal limits for the speech frequencies of 500 through 4000 Hertz bilaterally and that there were no complaints of hearing loss, tinnitus, or ear trouble in the claims file. The examiner provided another addendum opinion in July 2013. The examiner stated that his opinion as to the etiology of the bilateral hearing loss and tinnitus disabilities remained unchanged. The examiner again noted the normal hearing acuity at separation and the transient and non-permanent nature of the in-service threshold shifts. In addition, the examiner noted that the Veteran's aging (presbycusis) had the potential for affecting his hearing acuity, as he was 75 years old. Moreover, the examiner stated that medical research had found no sufficient scientific basis for the existence of delayed onset hearing loss or tinnitus, citing to a 2006 study from the National Academy of Sciences. In conclusion, the examiner stated, "It is common knowledge in the profession of audiology that noise induced hearing loss and tinnitus manifest immediately after noise exposure and since there is no evidence of such a loss or any statement from the veteran alleging hearing loss or tinnitus soon after the claimed noise exposure, we cannot endorse a causal relationship between the claimed noise exposure in service and the current hearing loss." Having reviewed the record, the Board concludes that the preponderance of the evidence is against the Veteran's claims for service connection for hearing loss and tinnitus. In reaching that conclusion, the Board finds the opinions expressed in the July 2013 VA audiologist's addendum to be of significant probative value. The opinion was based on a review of the claims file, interview of the Veteran, and audio examination. Further, a complete and through rationale is provided for the opinions rendered. It is clear the audiologist reviewed the Veteran's service treatment records, taking note of the whispered voice test on entrance, the fluctuating hearing acuity during service, and the normal hearing acuity at separation. The examiner also considered the Veteran's contentions, but concluded that the transient threshold shifts in service, the normal hearing acuity on separation, the absence of any complaints of tinnitus in service, reports of tinnitus onset in about 1980, and medical studies concluding that there was no sufficient scientific basis for the existence of delayed onset hearing loss or tinnitus, made it less likely than not that the Veteran's bilateral hearing loss and tinnitus were due to his in-service noise exposure or otherwise to his military service. The examiner's conclusions are fully explained and consistent with the evidence of record. Consequently, the Board finds the July 2013 VA examination report addendum to be the most probative evidence of record as to whether his current hearing loss and tinnitus disabilities are related to service. The Board has considered the Veteran's contentions that his current tinnitus was caused by his in-service exposure to noise on the flight line, as well as from gun shots and machines. In this regard, the Veteran is certainly competent to report that he experiences difficulty hearing and tinnitus is the type of disability that is capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). In this case, the Veteran concedes that he did not have continuous tinnitus from service. Rather, the Veteran stated during his December 2012 VA examination that he first noticed tinnitus in approximately 1980, or several years after separation from service. The Board finds it compelling that the December 2012 VA examiner considered the Veteran's statements regarding the symptomatology of his tinnitus over time in rendering the July 2013 addendum opinion, but still concluded that his current tinnitus was unrelated to service because the medical evidence did not support the existence of delayed onset tinnitus. By contrast, the Veteran's report of hearing loss at the time of his separation examination suggests the possibility that he has had a continuity of decreased hearing acuity from service. In reaching that conclusion, the Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). Cf. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). That said, while the Veteran is competent to report a continuity of symptomatology, a hearing loss disability for VA purposes is based on whether the level of hearing acuity at multiple frequencies meets the criteria of 38 C.F.R. § 3.385 to be considered a hearing loss disability for VA purposes. In light of the Veteran's report of hearing loss, but the audiometric findings of normal hearing acuity at separation from service, the Board does not find that the Veteran's lay reports of continuity of symptomatology alone are sufficient to establish entitlement to service connection for a hearing loss disability in light of the mechanical nature of determining a hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions) As to the Veteran's general contentions that his hearing loss and tinnitus disabilities were incurred in or are otherwise related to his military service, given the Veteran's lack of demonstrated medical expertise, the Board finds that the opinion of the competent health care provider to be the most probative evidence of record as to the relationship between the Veteran's current bilateral hearing loss and tinnitus and his military service, and the Board is of the opinion that this opinion ultimately outweighs the Veteran's contentions as to etiology. See id.; see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). In summary, bilateral hearing loss and tinnitus were not medically diagnosed until decades after service. No medical professional, moreover, has ever otherwise linked the Veteran's current bilateral hearing loss and tinnitus to service, and, in fact, there is medical evidence to the contrary. Moreover, the Veteran concedes that he did not notice any tinnitus until after service and the Board does not find the Veteran competent to diagnose a hearing loss disability for VA purposes based on the provisions of 38 C.F.R. § 3.385 and ultimately finds the Veteran's contentions of a relationship between his current hearing loss and tinnitus heavily outweighed by the July 2013 VA examination addendum opinion. In light of the evidence, the Board concludes that the preponderance of the evidence is against the claims, and that service connection for bilateral hearing loss and tinnitus is not warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs