Citation Nr: 1331018	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  12-19 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee



THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.   Entitlement to service connection for bilateral hearing loss.



REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs



ATTORNEY FOR THE BOARD

J. Connolly, Counsel




INTRODUCTION

The Veteran served on active duty from August 1966 to August 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied service connection for bilateral hearing loss as well as a June 2011 rating decision which denied service connection for tinnitus..


FINDING OF FACT

Tinnitus is not attributable to service.  


CONCLUSIONS OF LAW

Tinnitus was not incurred or aggravated in active service.  38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  A VCAA letter was sent in April 2011 which indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess.

Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records (STRs), VA medical treatment records, Social Security Administration records, and identified private medical records were obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication that any additional evidence, relevant to these claims, is available and not part of the record.  The Veteran also was provided a VA compensation examination and addendum report, including for medical nexus opinions concerning the etiology of the claimed disorder and the potential relationship with military service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The medical nexus opinion obtained is responsive to the determinative issue of causation, so additional examinations and opinions are not needed.  38 C.F.R. § 4.2.  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a 
service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated).  The examination of record is adequate to address all pertinent concerns, as the record was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The VA examination report is thorough and supported by the record.  The records taken as a whole satisfy 38 C.F.R. § 3.326.

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).


Service Connection for Tinnitus

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  The Veteran is competent to report the Veteran can observe and feel through the senses.  See Layno.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 338 C.F.R. § 3.102.

The record indicates that the Veteran served in the Continental United States as a cook. A review of the STRs reveals no complaints, findings, treatment, or diagnosis of tinnitus.  On the Report of Medical History completed by the Veteran at his release from service, he reported that he had ears, nose, or throat trouble, but did not indicate the nature.  He denied having running ears or hearing loss.  

The Veteran claims that he was exposed to acoustic trauma from loud Howitzer guns which resulted in ringing in his ears.  He also claims that his ears were not evaluated on discharge.  The Veteran underwent an audiological evaluation by way of an audiogram on separation, but there were no other findings pertinent to the ears provided.  

Post-service, a private report noted that the Veteran had tinnitus in September 2008.

In November 2010, the Veteran was examined by a private provider.  At that time, he reported that his tinnitus began about 4 years prior to the examination.  He relate that he had a  history of noise exposure from service while serving in an artillery unit.  The examiner's impression with regard to the ears was that the Veteran had presbycusis with tinnitus, history of significant loud exposure secondary to artillery in the military in the 1960's.  The opinion fell short of definitively associated the tinnitus directly to service.  Also, the examiner did not explain the decades old gap between military noise exposure and the onset of tinnitus 4 years before the examination.  

In December 2010, the Veteran reported to a VA examiner that he had been experiencing tinnitus for 3 years.  

In February 2011, the Veteran was afforded a VA examination.  The Veteran reported an inservice history of noise exposure with no post-service history of noise exposure.  The Veteran stated that he had a gradual onset of tinnitus over the past five years which began spontaneously and without any specific event.  The examiner opined that due to the relatively long period of time between discharge from the military and the onset of tinnitus symptoms, it would seem less likely as not that the tinnitus that the Veteran currently has is a result of his military duties.  In a March 2011 addendum, the examiner again stated that it was less likely as not that the tinnitus was due to inservice noise exposure.    

With regard to the post-service examination reports, in determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez.  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon.  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl.

In this case, the private examination, as noted, did not address the significant gap in time between the onset of tinnitus and the inservice noise exposure.  The VA examination, which included a full audiological examination, concluded that the tinnitus was unrelated to service because of this gap in time.  The examiner was consistent in both the private and VA medical evidence in stating that the onset of tinnitus occurred in about 2006.  Thus, the VA examiner's opinion regarding the remote onset of tinnitus after service is consistent with the documentary record and is more probative than the private report.  The VA opinion meets the directives of Nieves-Rodriguez, is probative in nature, and is also more probative than the Veteran's assertions that tinnitus is related to inservice noise exposure because the Veteran failed to account for the interim period of nearly 40 years prior to a post-service onset.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

In sum, there were no complaints, findings, treatment, or diagnosis of tinnitus during service.  Post-service, he consistently reported that the onset of tinnitus occurred in the mid 2000's, decades after he separated from service.  The most probative evidence establishes that there is not an etiological connection between current tinnitus and service.  In addition, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis.  See Cohen v. Brown, 10 Vet. App. 128, 137 (1997).  Accordingly, service connection for tinnitus is not warranted.  


ORDER

Service connection for tinnitus is denied.  


REMAND
With regard to bilateral hearing loss, organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1110, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Hearing loss disability is defined by regulation.  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.  38 C.F.R. § 3.385.  The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

Since November 1, 1967, audiometric results have been reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  Service department audiometric charts dated after November 1, 1967 are presumed to be in ISO-ANSI units unless otherwise specified, while such charts in VA medical records dated after June 30, 1966, are similarly presumed to be in ISO-ANSI units.  

The Veteran's entrance examination revealed audiometric findings with puretone thresholds, in decibels, which were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
10
10a
10
LEFT
10
10
15
15
20

When converted, the following results are indicated:





HERTZ



500
1000
2000
3000
4000
RIGHT
45
30
20
20
15
LEFT
25
20
25
25a
25

The VA examiner who performed the post-service February 2011 examination and provided the addendum did not convert the audiometric results from the entrance examination.  This is apparent because although the hearing loss of the right ear was shown at 500 decibels, and there was some degree of hearing loss present in both ears at several frequencies, there was no mention of preexisting hearing loss and any potential aggravation thereof during service.  

A preexisting injury or disease will be considered to have been aggravated by 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; 38 C.F.R. § 3.306.  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; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  Veterans are presumed to have entered service in sound condition as to their health.  VA must presume that the veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of his or her entrance into service.  38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304.  The presumption of sound condition provides that 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 examination, acceptance and enrollment.  This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted.  The term "noted" denotes only such conditions as are recorded in examination reports.  A reported history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.  38 C.F.R. § 3.304; Crowe v. Brown, 7 Vet. App. 238 (1994).

Thus, in this case, the presumption of soundness does not attach to the right ear because hearing loss was shown at 500 Hertz and the record must show aggravation.  With regard to the left ear, according to Hensley, there was some degree of hearing loss, but this matter was not addressed by the examiner and it appears that an accurate medical history was not considered by the VA examiner.  Thus, another addendum must be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain a medical addendum as to the issue of service connection for bilateral hearing loss.  The record should be reviewed, including the entrance examination for service, the separation examination for service, the current audiological findings, and the lay evidence which discusses inservice acoustic trauma and hearing loss since service.  The examiner should refer to the converted findings regarding audiometric data from the induction examination.  

The following inquires should be answered with regard to the right ear:

(a) Is there evidence that the Veteran's preexisting right ear hearing loss disorder increased in severity (worsened) in service;

(b) If the preexisting right ear hearing loss disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in service was due to the natural progress of the right ear hearing loss disorder; please identify with specificity any evidence that supports this finding;

With regard to the left ear, the following inquires should be answered: 

(a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a left ear hearing loss defect, infirmity, or disorder that preexisted his military service; please identify with specificity any evidence that supports this finding.  The examiner is advised that the determination regarding inception should not be based solely on the Veteran's reported history, but should also include consideration of the clinical records and the known characteristics of any diagnosed left ear hearing loss;

(b) If there is clear and unmistakable evidence that the Veteran had a preexisting left ear hearing loss defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting left ear hearing loss disorder increased in severity (worsened) in service;

(c) If the preexisting left ear hearing loss defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in service was due to the natural progress of the left ear hearing loss disorder; please identify with specificity any evidence that supports this finding;

(d) If the examiner determines that the Veteran did not have a left ear hearing loss defect, infirmity, or disorder that preexisted service, is it at least as likely as not that the Veteran currently has a left ear hearing loss disorder that had its onset in, or is otherwise etiologically related, to his military service, or was present within one year of the Veteran's separation from service.  

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.  

2.  The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry.

3.  The AMC should then readjudicate the claim remaining on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs