Citation Nr: 1330775 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-05 888 ) 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: Texas Veterans Commission ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) as a member of the Texas Army National Guard from March 1971 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim of entitlement to service connection for bilateral hearing loss and tinnitus. At this juncture, the Board notes that 38 U.S.C. § 101(2) defines the term "veteran" as meaning a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(24) defines the term "active military, naval, or air service" as including (A) active duty; (B) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (C) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died - (i) from an injury incurred or aggravated in the line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. Presently, the claimant is not service connected for any disabilities. As he only served on ACDUTRA from March 1971 to August 1971, he is therefore not a "veteran" within the meaning of the law. See 38 U.S.C.A. § 101(2), (24) (West 2002). Until such time that he is awarded service connection for a disability, he will be referred to in this decision as the "claimant" or the "appellant." FINDINGS OF FACT 1. The claimant's only creditable military service is his period of ACDUTRA in the Texas Army National Guard from March 1971 to August 1971. 2. The clinical evidence demonstrates that the claimant's defective hearing (manifested by puretone hearing thresholds of 45 decibels in the right ear and 40 decibels in the left ear on objective audiological testing) that was noted on Texas Army National Guard enlistment examination in August 1970 existed prior to ACDUTRA and was not permanently worsened beyond its natural progression by ACDUTRA. 3. Tinnitus did not have its onset during the claimant's period of ACDUTRA in the Texas Army National Guard. CONCLUSIONS OF LAW 1. The claimant is not a veteran within the meaning of the law and his ACDUTRA service does not entitle him to any presumption of soundness upon his entry into ACDUTRA or presumption of aggravation. 38 U.S.C.A. §§ 101(2), (22)(A), (24), 1111, 1153 (West 2002); 38 C.F.R. § 3.306(b) (2013). 2. The claimant's bilateral defective hearing pre-existed his entry into ACDUTRA and was not aggravated in the line of duty by ACDUTRA. 38 U.S.C.A. §§ 101(24), 1153 (West 2002); 38 C.F.R. § 3.306 (2013). 3. The claimant's tinnitus was not incurred during ACDUTRA. 38 U.S.C.A. §§ 101(24), 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 and VA's duty to assist. The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The appellant's claim for service connection decided herein was filed in May 2009. A notice letter addressing the applicability of the VCAA to the claim and of VA's obligations to the appellant in developing the claim was dispatched in July 2009, which fully satisfied the above-described mandates. No timing of notice defect exists as fully compliant notice was sent prior the initial adjudication of the claim now on appeal before the Board by the agency of original jurisdiction in its rating decision of November 2009. VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the claimant of its duty to assist in obtaining records and supportive evidence. The claimant's service treatment records relating to his membership in the Texas Army National Guard (including his period of ACDUTRA), his VA clinical records pertaining to his treatment for bilateral hearing loss and tinnitus, and his written statements in support of his claim have been obtained and associated with the evidence. The claimant has also been provided with a VA audiological examination in October 2009 addressing the claimed disability at issue decided on the merits herein. Although the Board deemed this opinion to be flawed for lacking an adequate rationale, it resolved this defect by requesting in August 2013 that a VA audiology expert review the appellant's claims file and provide a nexus opinion addressing the current claim. The requested appeal was submitted by the VA audiology expert in September 2013, which was rendered in full compliance with the Board's instructions. The Board has also reviewed the claimant's claims file online, as it appears on the Virtual VA electronic database and VBMS, for any pertinent clinical records. The VA audiological examination of October 2009 and the VA audiology expert's opinion of September 2013 that address the disability at issue were performed by clinicians who reviewed the claimant's claims file and assessed him in the context of his reported history. When considered jointly and with the other evidence of record contained in his claims file, the aforementioned examination report and opinion are deemed to be adequate for purposes of adjudicating the VA compensation claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thusly, in view of the foregoing discussion, the Board finds that VA has fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his service connection claims decided herein, and thus no additional assistance or notification is required with respect to these issues. The Board finds that the current state of the record is sufficient to adjudicate this appeal. The appellant has suffered no prejudice in this regard that would warrant a remand and his procedural rights have not been abridged as they pertain to the matter on appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board will proceed with the adjudication of this appeal regarding the claims for VA compensation for bilateral hearing loss and tinnitus. Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). Under ordinary circumstances for veterans of active military wartime service or peacetime service on or after January 1, 1947, for purposes of 38 U.S.C.A. §§ 1110, 1131, and 1137, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). However, as previously discussed, the claimant in the present case is not a veteran within the meaning and plain language of § 1111 and, as such, he is not entitled to the presumption of soundness upon his entry into ACDUTRA in March 1971. Therefore, VA does not have the burden of rebutting such a presumption with the high evidentiary standard of clear and unmistakable evidence (as defined by the Federal Circuit Court of Appeals in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) and Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011)) establishing both that (1) the condition existed prior to service and (2) the condition was not aggravated by service. [See also Smith v. Shinseki, 24 Vet. App. 40 (2010): although the claimant had "veteran" status from a prior period of active service, he was not entitled to the presumption of soundness for a later period of ACDUTRA service because he was not medically examined upon entry for ACDUTRA.] In any case, as will be discussed below, the clinical records contemporaneous to the claimant's period of ACDUTRA clearly demonstrate that a bilateral defective hearing condition was objectively noted on military medical examination in August 1970, thereby establishing that the claimant's bilateral hearing loss pre-existed ACDUTRA. Ordinarily, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(a) (2013). However, as the appellant in the present claim has served only ACDUTRA, the United States Court of Appeals for Veterans Claims (Court) in Smith v. Shinseki, 24 Vet. App. 40 (2010), has held that the above presumption of aggravation does not apply to claims for service connection based on a period of ACDUTRA. The Court reasoned that as "active military, naval or air service" is a prerequisite for benefits based on aggravation under 38 U.S.C.A. § 1153, and as 38 U.S.C.A. § 101(24) defines this phrase different for periods of ACDUTRA (requiring aggravation to occur in the line of duty), the presumption of aggravation cannot attach. The Federal Circuit Court of Appeals (Federal Circuit) has held that a corollary to the Secretary's definition of "disability" in 38 C.F.R. § 4.1 is that an increase in disability must consist of worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). The Federal Circuit stated: "[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a . . . veteran to establish an increase in disability." Davis, 276 F.3d at 1345; see Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994) (The Federal Circuit held that 38 U.S.C.A. § 1153 requires some increase in the severity of the pre-existing condition causally related to military service). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(b) (2013). For 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 of 500, 1000, 2000, 3000 and 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; and the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). As relevant, the medical evidence pertinent to the claimant's period of ACDUTRA in the Texas Army National Guard from March - August 1971 shows that prior to entry into ACDUTRA, an August 1970 Texas Army National Guard enlistment examination shows that the claimant denied having hearing loss in his medical history questionnaire. Audiological testing revealed puretone hearing thresholds, in decibels, that were all below 26 decibels at 500, 1000, 2000, and 3000 Hertz, bilaterally, but that at 4000 Hertz his puretone hearing thresholds were 45 decibels in his right ear and 40 decibels in his left, thereby meeting the § 3.385 criteria for defective hearing. The examining clinician noted these findings and duly recorded in the August 1970 enlistment examination report that the claimant had defective hearing. As such, the notation of this defect objectively establishes that a bilateral hearing loss condition existed prior to the claimant's period of ACDUTRA. Thereafter, the claimant's ACDUTRA separation examination in August 1971 shows identical audiological findings, with puretone hearing thresholds all below 26 decibels at 500, 1000, 2000, and 3000 Hertz, bilaterally, and puretone hearing thresholds at 45 decibels in his right ear and 40 decibels in his left at 4000 Hertz. He continued to deny having hearing loss at his August 1971 ACDUTRA separation examination. The clinician who conducted the August 1971 ACDUTRA separation examination made a notation of defective hearing on the examination report. The service medical records pertinent to ACDUTRA contain no mention of tinnitus or symptoms relating to tinnitus such as a perceived ringing sensation in the ears. The claimant filed his application for VA compensation for bilateral hearing loss and tinnitus in May 2009, contending that he was exposed to acoustic trauma from operating mortars during ACDUTRA, which he reportedly fired without wearing hearing protection. He contends that such exposure aggravated (i.e., permanently worsened beyond its natural progression) his bilateral hearing loss and caused his tinnitus. The appellant acknowledged that after ACDUTRA he was regularly exposed to factory noise at his place of employment and also recreational noise exposure from using firearms for target shooting, but that in both instances he wore hearing protection. The report of an October 2009 VA audiological examination shows a diagnosis of tinnitus manifested by subjective complaints of persistent symptoms perceived bilaterally, which the claimant reported having since 1971. A diagnosis of bilateral sensorineural hearing loss was also objectively established, which was manifested by pure tone thresholds, in decibels, at the following frequencies: HERTZ 500 1000 2000 3000 4000 RIGHT 15 45 60 70 70 LEFT 15 50 60 65 65 - and speech recognition scores of 68 percent in the right ear and 64 percent in the left ear. The examining audiologist presented a negative nexus opinion, stating that it was less likely than not that the claimant's hearing loss and tinnitus were related to military noise exposure "based upon [service medical record] data" but otherwise the examiner did not present any supportive rationale for her conclusions. Acknowledging the defect in the October 2009 VA examination due to the absence of an adequate rationale, in August 2013 the Board requested a VA audiology expert review the appellant's claims file and render a nexus opinion addressing the likelihood that his bilateral hearing loss and tinnitus were related to ACDUTRA service. Incorporating a review of the entirety of the pertinent record, the VA audiology expert presented the following opinion in September 2013: [With regard to the question of whether it is] at least as likely as not (50 percent greater probability) that the [appellant's] defective hearing was aggravated (chronically worsened) due to the claimed acoustic trauma during his active duty for training from March 1971 to August 1971[, a review] of service treatment records documented a pre-existing bilateral hearing loss at entrance physical examination. Physical examination at separation also documented a bilateral hearing loss. No significant change in hearing is noted between hearing tests at entrance and separation physical examination. Based on these hearing tests, there is no objective evidence of acoustic trauma during active duty training from March 1971 to August 1971. Therefore, it is my clinical opinion that it is less likely as not that the [claimant's] defective hearing was aggravated (chronically worsened) due to the claimed acoustic trauma during his active duty for training from March 1971 to August 1971. [With regard to the question of whether it is] at least as likely as not (50 percent greater probability) that the [appellant's] current tinnitus was incurred in, or [was] a result of, the claimed acoustic trauma during his active duty for training from March 1971 to August 1971[, a review of his claims file demonstrates] not objective evidence of acoustic trauma during active duty training from March 1971 to August 1971. Hearing tests revealed a pre-existing bilateral hearing loss at entrance physical examination that was found to be without significant change at separation physical examination. There is no documentation of tinnitus in [the] service treatment records. At [the VA] examination in 2009 the [claimant] reports occupational and recreational noise exposure with use of hearing protection devices. Because there is no objective evidence of noise injury during [his] period of active duty for training, there is no basis on which to conclude that the claimed tinnitus is associated with such injuries. It is my clinical opinion that it is. . . less than likely as not that the [claimant's] current tinnitus was incurred in, or [was] the result of, the claimed acoustic trauma during his active duty for training from March 1971 to August 1971. The Board has considered the aforementioned evidence. Considerable probative weight is accorded to the September 2013 VA audiology expert's opinion as it is predicated on her review of the entire pertinent record, thereby incorporating all prior clinical findings and reconciling any conflicting opinions in arriving at her definitive conclusions regarding the etiologies of the hearing loss and tinnitus at issue and their relationship to the claimant's ACDUTRA. The clinical evidence demonstrates that the claimant's bilateral hearing loss was noted on service examination prior to ACDUTRA and thusly pre-existed ACDUTRA. The clinical evidence further demonstrates that the pre-existing hearing loss was not aggravated by ACDUTRA given the absence of any significant changes in the audiological test scores obtained prior to ACDUTRA and on separation from ACDUTRA. Furthermore, the clinical evidence demonstrates that the claimant's tinnitus did not have its onset during ACDUTRA, given the absence of any notation of tinnitus during this period, the absence of sufficient exposure to acoustic trauma to cause any significant changes in his audiological test scores obtained prior to ACDUTRA and on separation from ACDUTRA, and the admission of protected exposure to workplace and recreational noise in the years following ACDUTRA. Opposing the clinical evidence discussed above are the appellant's assertions that he perceived his subjective symptoms of tinnitus as early as in 1971 while in ACDUTRA and also perceived a permanent worsening of his hearing acuity in both ears in ACDUTRA. The appellant is competent to report his subjectively perceived symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, to the extent that he reports having these during ACDUTRA for purposes of establishing a nexus with service and chronicity through continuity of symptomatology thereafter, the Board finds that the appellant's accounts are not credible as they are contradicted by the contemporaneous clinical evidence, which shows that he denied having hearing loss in his medical history questionnaire during separation from ACDUTRA in August 1971, and the absence of any clinical notation of tinnitus in the medical records pertinent to his period of ACDUTRA. Thusly, in view of the foregoing discussion, the Board finds that the weight of the evidence is against the appellant's claims for service connection for bilateral hearing loss and tinnitus, as the objective medical evidence far outweighs his assertions regarding the history of these disabilities. Although lay persons such as the appellant are competent to provide opinions on some medical issues, one of the specific questions presented here (i.e., whether or not tinnitus had its onset in ACDUTRA in March - August 1971, and whether or not bilateral hearing loss that pre-existed his entry into ACDUTRA was aggravated in the line of duty by ACDUTRA in March - August 1971) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to present a medical opinion as to whether an internal disease process had its onset in, or was otherwise aggravated (i.e., permanently worsened beyond its natural progression) by military service). To the extent that the appellant states on his own authority, based on his own personal knowledge of his individual medical history and condition, that his tinnitus and bilateral hearing loss are related to and/or aggravated by his ACDUTRA service, the Board accords greater probative weight to the opinions presented by a trained physician or audiological specialist that address this matter. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); & Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The appellant has not been shown to possess the requisite medical training, expertise, or credentials needed to present a competent opinion as to the medical causation of hearing loss or tinnitus, or whether it was incurred or aggravated in the line of duty by his ACDUTRA service. Nothing in the record demonstrates that he received any special training or acquired any clinical expertise in diagnosing and evaluating audiological disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In view of the foregoing discussion, the Board must deny the claimant's appeal for service connection for bilateral hearing loss and tinnitus, as the preponderance of the evidence is against allowing these claims. Because the evidence in this case is not approximately balanced with respect to the merits of these claims, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs