Citation Nr: 1330729 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-32 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from July 2007 and March 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2013 the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the Veteran submitted additional evidence (VA treatment records) with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file include the transcript of the September 2013 travel Board hearing. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. No hearing loss disability has been present during the pendency of this claim. 2. Tinnitus was not present in service; no current tinnitus is related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active military service, and sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in May 2007, prior to the initial adjudication of the claims, advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence, as well as notice with respect to the disability-rating and effective-date elements of his claims. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed. The Veteran's service treatment records (STRs) and all identified, available, post-service treatment records have been obtained. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claims. The Board is also unaware of any such records. Moreover, the Veteran has been afforded an appropriate VA examination in 2013. Discussion of the Veteran's 2013 travel Board hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues as listed above were identified at the hearing. Information was elicited from the Veteran concerning the etiology of his hearing loss and tinnitus, to include whether he had any evidence that such disabilities could be related to his active service. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). In addition, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If the condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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). Impairment in hearing acuity is not considered a disability for purposes of an award of service connection unless audiometric test results, including speech recognition scores, have reached a certain level. The provisions of 38 C.F.R. § 3.385 provide that: 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. Examinations for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry purposes. See 38 C.F.R. § 4.85(a). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's STRs are silent for complaints or findings of tinnitus or hearing loss disability (as defined in 38 C.F.R. § 3.385). On separation examination in August 1969, whispered voice testing was 15/15. Service personnel records for the Veteran's active duty service show that the Veteran's military occupational specialty (MOS) was engineer equipment operator. Following service, VA outpatient treatment records dated from 1998 to 2006 are negative for complaints or findings related to hearing loss or tinnitus. The Veteran's original claim for VA compensation for hearing loss disability and tinnitus was received in March 2007. The Veteran stated he was exposed to noise from heavy trucks and combat in service. VA outpatient treatment records show that the Veteran requested an audiology consultation in August 2007 for complaints of hearing loss. An October 2007 audiology consultation report notes the Veteran's complaints of constant tinnitus and pain, as well as hearing loss. Audiometric testing was conducted but speech audiometry was not reported. Therefore, the Veteran did not undergo an examination in accordance with 38 C.F.R. § 4.85(a). VA audiometric testing conducted in November 2008 but speech audiometry was not reported. Therefore, the Veteran did not undergo an examination in accordance with 38 C.F.R. § 4.85(a). In a May 2009 statement, the Veteran that, during his military service, he was exposed to noise from combat while stationed in Vietnam, and noise from heavy trucks and airplanes while stationed in Arizona. A March 2013 VA examination report and tinnitus. He reported a history of noise exposure during his military service. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 20 20 LEFT 20 30 25 30 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear. After reviewing the Veteran's claims file, the examiner opined that the Veteran's hearing loss and tinnitus were not at least as likely as not related to his military service, to include his noise exposure therein. In this regard, the examiner noted that there were no findings of hearing loss or tinnitus in service. Following service, the Veteran worked in noisy environments (for a foundry and a roofing company) for over 21 years. Furthermore, the Veteran was 66 years old. The Veteran testified that he was not provided ear protection during service, and was exposed to noise from trucks and airplanes. He essentially stated that his hearing loss and tinnitus began during service. Following service, he was exposed to noise at various jobs, including his work at foundry and his work as a roofer. Hearing Loss Disability Even conceding that the Veteran was exposed to noise from combat, trucks and airplanes in service, the evidence does not show any hearing loss disability (as defined by 38 C.F.R. § 3.385) in service. There is also no evidence that the Veteran has been diagnosed with hearing loss disability by VA standards at any point since service. In this regard, there is only one examination report conducted in accordance with 38 C.F.R. § 4.85(a). The 2013 VA examination report shows that no hearing loss disability (as defined by 38 C.F.R. § 3.385) was present. There is no post-service medical evidence to the contrary. Therefore, the Board concludes that the preponderance of the medical evidence establishes that bilateral hearing loss disability has not been present at any time during the pendency of this claim. Thus, there is no valid claim of service connection for such disability. See Brammer, supra. With respect to whether the Veteran's own statements can establish a current disability here, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. In this case, the Board acknowledges that the Veteran is able to observe his problems hearing; however, the Board does not believe that the Veteran has the expertise required to determine whether any such problems amount to hearing loss disability by VA standards. In any event, even assuming that the Veteran's statements are competent evidence of the presence of hearing loss disability, his statements are clearly of less probative value than the medical evidence indicating that hearing loss disability has not been present during the period of this claim. As the Veteran has not shown a current disability for which service connection can be granted, the claim must be denied. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. Tinnitus In the present case, the evidentiary record shows that the Veteran currently suffers from tinnitus. See March 2013 VA examination report. Because the Veteran is shown to have tinnitus, the Board will next consider whether the evidentiary record supports a finding of in-service incurrence. The Board acknowledges that the Veteran is competent to state that he has suffered from tinnitus since service. However, the Board has not found the Veteran to be credible with respect to these contentions. In this regard, the Board notes that the Veteran's STRs are negative for complaints of tinnitus. Moreover, from the date of the Veteran's discharge until 2007, he submitted various claims seeking service connection, and sought medical treatment for various disabilities. He did not mention any complaints of tinnitus until 2007. Credibility is an adjudicative, not a medical determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the appellant's statements are inconsistency. What is necessary to substantiate the Veteran's claim is competent (medical) evidence that relates his current tinnitus to an event, injury, or disease in service. As noted above, the 2013 VA examiner essentially opined that the Veteran's tinnitus is not related to his military service. The VA examiner's opinion is based on a review of the Veteran's entire pertinent medical history, including his STRs and post-service medical evidence. There is no medical opinion to the contrary of record. Accordingly, after weighing the lay and medical evidence pertinent the claim, the Board finds that the preponderance of the evidence is against finding that the Veteran began suffering from tinnitus in service, and has experienced tinnitus since service. The benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. [Continued on Next Page] ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs