Citation Nr: 1330816	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  09-33 230	)	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

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel



INTRODUCTION

The Veteran had active duty from November 1962 to November 1964. 

This matter arises before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

In May 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action.  After completing the additional development, the AMC continued to deny the claim (as reflected in a January 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration.  

The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence.


FINDINGS OF FACT

1.  The Veteran does not have left ear hearing loss as defined by VA regulation.  

2.  Right ear hearing loss was not manifest during the Veteran's military service or until many years thereafter; and, the preponderance of the evidence is against the finding that Veteran's diagnosed right ear sensorineural hearing loss is etiologically related to his active service, to include noise exposure. 

3.  Tinnitus was not manifest during the Veteran's military service; and, the preponderance of the evidence is against the finding that Veteran's tinnitus is etiologically related to his active service, to include noise exposure.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (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 service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (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).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in December 2008 of VA's duty to assist him in substantiating his claims and the effect of this duty upon his claims.  This letter also informed him of how disability ratings and effective dates are assigned.  Dingess, 19 Vet. App. at 484.  Because the letter addressed all notice elements and predated the initial adjudication by the AOJ in March 2009, nothing more is required.  

VA has also satisfied its duty to assist the Veteran in the development of his claims.  The Board has reviewed both the Veteran's physical claims file and the file on the Virtual VA electronic file system, to ensure a total review of the available evidence.  The Veteran's in-service treatment records have been associated with the claims file.  He has also submitted personal statements and representative argument.  The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained.  

Additionally, the Board is satisfied that the AMC has substantially complied with its May 2011 remand directives as they pertain to the service connection matters decided herein.  Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  The AMC/RO arranged for the Veteran to undergo VA examination in June 2011 to assist in determining whether the Veteran's hearing loss and tinnitus are attributable to his military service.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds that the June 2011 VA examination is more than adequate, as it reflects a full review of all medical and other evidence of record, is supported by sufficient detail, and refers to specific documents and medical history as well as the Veteran's service history to support the conclusions reached.  There is no basis to conclude that the VA medical opinion is inadequate, or that a remand for a new examination is required.  Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). 

Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA.  No useful purpose would be served in remanding this matter for yet more development.  A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran.  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); & Quartuccio v. Principi, supra.  

Law and Analysis

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, 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"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  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).  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Service connection for certain specified chronic diseases, such as organic diseases of the nervous system, may be established on a presumptive basis by showing that they manifested to a degree of 10 percent or more within one year from the date of separation from service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a).  See M21-1MR III.iv.4.B.12.a.

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.  Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), which includes sensorineural hearing loss.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).  A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed.  Id.  

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, or 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley, 5 Vet. App. at 159.  

Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type.  See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007).  And, indeed, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis.  See Charles v. Principi, 16 Vet. App. 370 (2002). 

After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 

The Veteran contends that he suffers from bilateral hearing loss and tinnitus as a result of acoustic trauma sustained in service.  Specifically, he claims that he attended a Generator Maintenance Course which was the source of hazardous noise exposure.  He also contends that he was exposed to "loud screeching noises" which came through his headset while setting up switchboards during the course of his duties as a telephone installation repairman.  He maintains that he has been experiencing symptoms of hearing loss and tinnitus since service.  See Notice of Disagreement received in March 2009, VA Form 9, Appeal to Board of Veterans' Appeals received in September 2009, and VA Form 646, Statement of Accredited Representative in Appealed Case, dated in November 2010.

Turning to the evidence of record, at the time of his induction to service in November 1962, the Veteran's ears were found to be within normal limits and his whispered-voice test was 15/15, bilaterally.  Although the Veteran reported that he suffered from "ear, nose or throat trouble" at the time, he did not elaborate as to any specific ear, nose or throat disability.  Subsequent treatment records not reveal any complaints of, treatment for, or diagnosis of hearing loss or tinnitus or any specific instances of complaints or treatment stemming from noise trauma.  

The Veteran's ears were found to be within normal limits at the time of his November 1964 separation from service.  He again reported that he suffered from "ear, nose or throat trouble" but did endorse any specific ear, nose or throat disability.  Audiometric testing at separation reflects that none of the Veteran's tonal exceeded 15 decibels at any of the testing frequencies.  Specifically, at the 500, 1000, 2000, 3000, and 4000 frequencies, the Veteran recorded puretone thresholds of 15, 10, 10, 10, and 5, bilaterally. (Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute  (ANSI).  The in-service hearing evaluations discussed above were converted from the ASA standards).  In short, hearing loss for VA purposes was not shown at the time of the Veteran's service discharge or at any point during his active service.

Nevertheless, a review of the Veteran's service personnel records confirm that he attended "Generator School" for one week in 1963.  His military occupational specialty was telephone installation repairman.  A review of his DD Form 214 and DA Form 20 also reveals that he trained as an M-1 rifle sharpshooter in November 1963.  Therefore his account of his in-service noise exposure is credible and consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) (West 2002).  So, the question remains as to whether the Veteran currently has bilateral hearing loss and tinnitus that are associated with his now conceded in-service noise exposure. 

The Board notes that in his October 2008 claim for service connection, the Veteran did not list any dates of medical treatment or evaluation for either disability at any time following service separation.  There are also no post-service medical records dated immediately after service referencing hearing or tinnitus problems.  In fact, there are no pertinent clinical records associated with the claims file until a VA examination in June 2011, 47 years later.  At that time the Veteran reported exposure to noise from weapons and "radio noise" while serving as a telephone lineman for two years in the service.  He did not indicate any history of recreational noise exposure, but did report a history of occupational noise exposure from a brick plant and telephone work.  The Veteran was unsure of the onset of the tinnitus. 

On the authorized audiological evaluation, pure tone thresholds, in decibels, were shown to be: 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
15
10
40
LEFT
10
10
15
20
35

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left.  The audiological results were summarized as normal to mild sensorineural loss with excellent speech discrimination.  

After reviewing the claims file in its entirety, taking a detailed history of the Veteran's military service (including the conceded noise exposure), the examiner concluded that the Veteran's hearing loss and tinnitus were not caused by or a result of military service noise exposure.  The audiologist noted the Veteran served two years as a telephone lineman and was exposed to noise from weapons and radio noise during service, but also noted that the Veteran's hearing was within normal limits bilaterally at separation.  He added that the Veteran had stated that he was unsure of the onset of his tinnitus.  On this basis the audiologist concluded that the Veteran's hearing loss and tinnitus were less likely as not (less than 50/50 probability) caused by or a result of military noise exposure.  

Notwithstanding the negative opinion, the measurements of the Veteran's left ear hearing acuity in May 2011 do not satisfy any of the three alternate bases for establishing hearing loss disability under 38 C.F.R. § 3.385.  There are no audiology tests that establish a left ear hearing loss disability at any time during the appeal period.  McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013 (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 the Veteran does not have left ear hearing loss for which service connection could be awarded for VA purposes.  See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability).  The preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim).  

The preponderance of the evidence is also against the finding that the Veteran's right ear sensorineural hearing loss and tinnitus are related to his active service, to include noise exposure.  The fact that he was exposed to some degree of acoustic trauma during service is conceded, but that fact alone does not establish a basis for the grant of service connection for either disability.  The service treatment records do not show either chronic hearing loss or tinnitus as indicated by the VA audiologist who reviewed such records.  There is also a very lengthy period after service discharge in which there is no evidence of hearing loss or tinnitus complaints.  While not outcome determinative, the fact remains that four decades passed before the Veteran made any complaint of hearing loss or tinnitus.  He couldn't even recall the initial onset of his tinnitus.  Such clearly undermines any assertion of continuity of symptomatology.  There is likewise no basis for assigning service connection based on the presumptions outlined under 38 C.F.R. §§ 3.307, 3.309(a). 

Furthermore, the Board finds the 2011 VA opinion is highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale.  The VA examiner considered the Veteran's history of noise exposure (both in-service and post-service), the results of the personal clinical evaluation, the relevant history as contained in medical records from service onward, and discussed the Veteran's symptoms in the context of that history.  He thus had sufficient facts and data before him.  As a result, he was able to address fully the salient question as to the origin of the Veteran's current hearing loss and tinnitus and their relationship to military service.  Moreover, the claims folder contains no competent medical evidence refuting this opinion.  

In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion.  The facts here are distinguishable because the VA examiner clearly recognized that the Veteran had noise exposure while in the military (relevant in-service injury).  He instead concluded that the noise exposure in service was not the precipitant of his hearing loss and tinnitus when also considering the additional noise exposure he had before and particularly after service.  

Therefore, after weighing all the evidence, the Board finds greater probative value in the 2011 VA examiner's conclusions, and, in light of the other evidence of record, that negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position.  Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).

Consideration has been given to the Veteran's contention that his hearing loss and tinnitus are related to his in-service noise exposure.  However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, hearing disabilities, including sensorineural hearing loss and tinnitus, fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Sensorineural hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that audiological testing and other specific findings is needed to properly assess and diagnose the disorder.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). 

That is, although the Board readily acknowledges that Veteran is competent to report diminished hearing as well as the symptoms of tinnitus, there is no indication that the Veteran is competent to diagnose sensorineural hearing loss, which requires meeting the test requirements of 38 C.F.R. § 3.385, or render an opinion that relates his hearing loss or tinnitus to his in-service noise exposure.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disorder.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value.

Moreover, as noted, the record includes a single competent medical opinion in the record that conclusively found no etiological relationship between the noise exposure in service and the subsequent development of hearing loss and tinnitus.  As has been noted, the Veteran has not established that he has experienced continuous hearing loss since his military service, only believing instead there must be some correlation between this condition and his military service - in effect, by logical deduction - because he was exposed to excessively loud noise while in service.  But this inductive leap would require ignoring that the Veteran did not report any such difficulties upon separation examination and the significant lapse in time between service and post-service medical treatment, which the VA examiner apparently considered more significant.  In this case, the Veteran's opinion, to the extent it is to be accorded some probative value, is far outweighed by the more thoroughly explained and detailed opinion from the VA medical professional.  Jandreau, supra & Buchanan, supra.  

Accordingly, the preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.  



____________________________________________
MICHAEL A. HERMAN 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs