Citation Nr: 1330776 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-16 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1950 to March 1953. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2013 the Veteran's claim was referred for a medical opinion by an expert from the Veterans Health Administration (VHA). 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901 (2012). In July 2013 an opinion letter was received and referred to the Veteran and his representative for review and the submission of any additional evidence or argument. 38 C.F.R. §§ 20.903, 20.1304(c) (2012). A copy of the VHA opinion letter has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 2. The Veteran currently has right ear hearing loss to an extent recognized as a disability for VA purposes, and competent medical evidence indicates that right ear hearing loss is more likely than not etiologically related to in-service noise exposure. 3. The evidence does not show that it is at least as likely as not that the Veteran's left ear hearing loss is related to his military service, and left ear hearing loss was not shown within 1 year following service separation. 4. The Veteran currently has tinnitus, and competent medical evidence indicates that tinnitus is more likely than not etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. With the resolution of reasonable doubt, the criteria for service connection for right ear hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 3. With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a June 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in May 2012. In addition to providing various notices to claimants, VA also must make reasonable efforts to assist them with obtaining evidence that is necessary to substantiate their claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including a service separation examination report, a private medical examination report, a VA examination report, and a VHA opinion letter. The RO has attempted to obtain the Veteran's complete service treatment records. In August 2009 the RO informed the Veteran that they had been unsuccessful in acquiring his service treatment records and prepared a memorandum, the subject of which was a formal finding on the unavailability of the service treatment records. VA has a heightened duty to assist the Veteran in developing his claim since his service treatment records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran was also afforded a VA examination directed at establishing the etiology of his hearing loss and tinnitus. While the examiner did not have the Veteran's complete service treatment records available for review, the VA examiner's opinion was based on a complete review of all of the available evidence of record, including the Veteran's March 1953 separation examination report. The examiner indicated that he was aware of the Veteran's in-service duty activities, including noise exposure from field artillery, and hearing-related medical history based on discussion with the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (medical opinion is adequate when based upon consideration of the veteran's prior medical history and describes the disability in sufficient detail for a fully informed evaluation). Additionally, the July 2013 VHA opinion was likewise based on a full review of the available record, and the VHA examiner indicated acknowledgement of the Veteran's in-service noise exposure based on lay statements. This opinion is therefore adequate for the purposes of VA disability evaluation. Id. For the reasons set forth above, the Board finds that VA satisfied its obligations pursuant to the VCAA in this case. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Analysis The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran has described his duties in service as manning field artillery on the front lines in combat without hearing protection. While the Veteran's service treatment records have mostly been lost, his DD Form 214 indicates that he received the Korean Service Medal with three bronze service stars, which verifies that the Veteran performed duty in the Republic of Korea, and his listed duty assignment confirms that he served with an Engineer Battalion. Based on this credible supporting evidence and the Veteran's credible lay statements, the Board concedes that the Veteran was exposed to significant acoustic trauma during service. The Veteran submitted an April 2008 private audiogram which appeared to show hearing loss in both ears of sufficient severity to warrant a disability for VA purposes. 38 C.F.R. § 3.385. In October 2009 the Veteran underwent a VA examination. The Veteran recounted his noise exposure during and after service, which included 4-5 years working at a plywood mill and using a lawn mower at home. The Veteran reported that his left ear hearing loss began 2-3 years after his separation from service and his right ear hearing loss began more recently. He stated that his left ear tinnitus began several years ago, but his right ear tinnitus began more recently. Audiometric testing revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 25 45 65 95 95 LEFT EAR 55 70 105 105+ 105+ Speech recognition testing revealed speech recognition ability of 26 percent in the right ear and 32 percent in the left ear. The examiner diagnosed the Veteran with normal to profound hearing loss in the right ear, moderately severe to profound hearing loss in the left ear, and bilateral subjective tinnitus. The examiner opined that the Veteran's tinnitus was less likely as not a result of in-service noise exposure due to its recent onset, but stated that he was unable to determine the etiology of his tinnitus and hearing loss without resort to mere speculation. The examiner noted that other non-military etiologies, including aging, occupational and recreational noise exposure, middle ear pathology, high blood pressure, and diabetes could also be factors in the Veteran's late-onset hearing loss and tinnitus. In July 2013 VA received a VHA opinion from an audiologist regarding the etiology of the Veteran's hearing loss and tinnitus. The VHA examiner noted that the Veteran's separation examination included a whisper hearing test which reported normal findings, but stated that whisper tests were not reliable tests of hearing sensitivity. She also noted the Veteran's reports of noise exposure during service from serving with an Engineer Battalion. She opined that the Veteran's right ear hearing loss was precipitous, high frequency sensorineural hearing loss, and based on that configuration of hearing loss, was at least as likely as not due to military noise exposure. She wrote that the Veteran's left ear hearing loss was a mixed hearing loss, which suggested a medical or middle ear pathology, and was therefore less likely as not related to military noise exposure. The examiner also found that because there was hearing loss related to military noise exposure in one ear, military noise exposure could not be ruled out as a contributing factor to tinnitus, and therefore tinnitus was as likely as not related to military service. While the Veteran's separation examination does not show any hearing loss at the time of separation from service, the lack of in-service evidence of hearing loss disability is not necessarily fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Likewise, service connection for tinnitus may be granted upon a showing that the disability is medically-related to service or to service-connected disability. The record shows that the Veteran does currently have diagnoses for both tinnitus and bilateral sensorineural hearing loss of sufficient severity to warrant consideration as a disability for VA purposes, pursuant to 38 C.F.R. § 3.385. On the question of etiology, the current record includes competent and probative medical evidence from the July 2013 VHA examiner indicating that the Veteran's right ear hearing loss and tinnitus are as likely as not related to noise exposure during service. The preponderance of the evidence of record does not, however, indicate that the Veteran's left ear hear loss is as likely as not related to noise exposure during service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). While the October 2009 VA examiner was unable to provide the likely etiology of the Veteran's hearing loss and tinnitus without resort to speculation, the July 2013 VHA examiner provided ample rationale for her opinion, based on a comprehensive review of the documented and asserted medical history and evidence. The July 2013 VHA opinion is therefore afforded great probative weight on the medical nexus question. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). On the basis of this medical opinion, there is sufficient evidence indicating that service connection for right ear hearing loss and tinnitus is warranted. Regarding the Veteran's left ear hearing loss, although the Board has conceded that the Veteran was exposed to acoustic trauma in service, service connection cannot be granted in the absence of competent medical evidence of record which links his current left ear hearing loss to service. The Board notes that there is no competent medical evidence on file of a left ear hearing loss disability, as defined by 38 C.F.R. § 3.385, until the April 2008 private examination, approximately 55 years after the Veteran's separation from service. The Veteran has also not asserted at any time that his left ear hearing loss manifested during service or within one year of service, nor has he provided evidence of any diagnoses or treatment for hearing loss prior to April 2008. Thus, the Board finds that the Veteran has failed to provide evidence of continuity of symptomatology indicative of a chronic condition that has existed since separation from service. The absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of a low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (prolonged periods without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for left ear hearing loss. The Board also points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The only opinion of record in favor of a nexus between the Veteran's left ear hearing loss and his in-service acoustic trauma is that of the Veteran himself. However, as a lay person, the Veteran is not competent to provide a medical diagnosis of hearing loss as such requires medical testing, or to determine the etiology of any such hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hearing loss can have many causes, and its etiology requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). The most probative opinion on this point, therefore, is that of the July 2013 VHA examiner. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for right ear hearing loss and tinnitus is warranted. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. Regarding the Veteran's claim for entitlement to service connection for left ear hearing loss, that doctrine is inapplicable because the preponderance of the evidence is against the claim, and the claim must be denied. See, e.g., Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs