Citation Nr: 1331456 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-16 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from March 1966 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from the December 2010 decision by the St. Louis, Missouri, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for bilateral hearing loss and tinnitus. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDINGS OF FACT 1. The medical evidence of record does not demonstrate that the Veteran has a current diagnosis of bilateral hearing loss disability for purposes of establishing service connection. 2. The preponderance of the evidence is against finding that the Veteran has a tinnitus disability that is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for service connection of bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection of tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). An April 2010 letter with a May 2010 addendum satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The April 2010 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also met its duty to assist the Veteran in the development of the claim. The VA treatment records and examination have been obtained in the development of the claim. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159. The record does not contain evidence nor has the Veteran has not indicated he is in receipt of Social Security Administration (SSA) benefits. The Veteran has been afforded a VA examination conducted in October 2010. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board has considered Veteran's assertion that the examiner's demeanor during the hearing was rude, as well as his later assertion that the examiner's opinion was based on an incomplete description regarding his history. However, a review of the examination report reveals that the VA examiner considered Veteran's description and history of his symptoms, reviewed the claim file, conducted a thorough examination and provided a detailed report of the Veteran's condition with a clear opinion and rationale connecting the evidence to his conclusions. There is no indication of any additional relevant evidence or information that has not already been obtained. Although the Veteran was unhappy with the examiner's demeanor, the Board can find nothing in the report to suggest that the examiner was in any way biased against the Veteran's claim. For these reasons, the Board finds that the examination report contains sufficient bases and findings for the Board to render a decision in this appeal. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) (West 2002) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither tinnitus nor bilateral hearing loss disability is on the list of chronic diseases in the statute or regulation. VA policy, however, is to consider sensorineural hearing loss as an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation. See, e.g., VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a (June 5, 2012) ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a)"). The Board will therefore consider the Veteran's bilateral sensorineural hearing loss to be an organic disease of the nervous system and therefore a chronic disease subject to the chronicity and continuity provisions of 38 C.F.R. § 3.303(b). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, the chronic diseases listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a), including for the reasons noted above sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a). VA adjudicators are directed to assess both medical and lay evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)(a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002)(tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). A layperson is generally not capable of opining on matters requiring medical knowledge and, specifically is not competent to provide an opinion as to etiology in such cases. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. 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, 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. Relevant Evidence The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). During service, the Veteran underwent multiple audiological examinations. The Board notes that some audiological findings contained in the Veteran's service treatment records (STRs) were initially reported in Acoustical Society of America (ASA) units, which was used for tests conducted prior to October 1967. However, the Board has converted these audiological findings to the currently used standard developed by the International Organization for Standardization (ISO). The unconverted ASA findings are designated in parentheses. The January 1966 enlistment report of medical history and clinical evaluation included no indication of hearing loss. The examination noted puretone auditory thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (-10) 0 (-10) 5 (-5) - 5 (0) LEFT 15 (0) 10 (0) 5 (-5) - 10 (5) A March 1967 hearing conservation data examination included a report of some ringing and a growth in the Veteran's left ear, noting the Veteran had sinusitis with a cold at the time of testing. The medical history and status indicated the Veteran had tinnitus prior to his first noise exposure, no tinnitus following exposure to noise and an upper respiratory infection. The examination further noted the Veteran wore ear protection during the most recent noise exposure. The puretone auditory thresholds, in decibels were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (-10) 0 (-10) 5 (-5) 0 (-10) 10 (0) LEFT 5 (-10) 0 (-10) 5 (-5) 5 (-5) 10 (0) An April 1968 hearing conservation data examination indicated the Veteran was suffering from a cold and wore ear protection during his most recent noise exposure. The medical history and status reported no tinnitus prior to first noise exposure, no tinnitus following exposure to noise and an upper respiratory infection. The examination included puretone auditory thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -5 -5 -5 LEFT -10 -10 -10 -10 -5 An initial flying class examination in February 1969 indicated no signs of hearing loss in the report of medical history or clinical evaluation. The clinical evaluation indicated normal ears generally. The examination reported puretone auditory thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 15 15 LEFT 10 10 5 10 15 STRs show treatment for an ear problem in February 1969 with a description that the Veteran complained of feeling like he had water in his ear for over one week. A March 1969 treatment note indicated the Veteran had his ears cleaned out. The Veteran was seen for a right ear ache in September 1969 with notations that his ear canal was plugged. The November 1969 exit examination included a report of medical history and clinical evaluation with no indication of hearing loss. The clinical evaluation indicated normal ears generally. Puretone auditory thresholds, in decibels were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 10 LEFT 10 5 5 15 10 A VA audiology examination was conducted in October 2010. The examination report revealed the Veteran's pure tone thresholds at: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 25 35 LEFT 10 10 15 20 25 The four frequency average pure tone thresholds were 24 decibels in the right ear and 18 decibels in the left ear. Speech recognition scoring utilizing the Maryland CNC word list at 60 decibels was 100 percent, bilaterally. The VA examiner diagnosed the Veteran with mild high frequency hearing loss between 500- 400 Hz in the right ear, normal hearing sensitivity in the left ear and excellent speech recognition bilaterally. The VA examiner detailed the Veteran's reported history of military service aircraft noise exposure and hunting. The VA examiner opined the hearing loss was not as likely as not related to military service. The VA examiner explained the opinion was based on findings of normal hearing at the separation examination and the denial of ear problems at the time of the separation physical. During the 2010 VA audiological examination the Veteran reported tinnitus symptoms of hearing a mild humming in his left ear approximately once per month lasting approximately ten minutes. He stated he barely noticed it and it didn't bother him. He was not able to report when he first noticed the humming and had no opinion as to etiology. The VA examiner provided an opinion that the tinnitus is not as likely as not related to his military service. The VA examiner explained the tinnitus described by the Veteran is mild, infrequent and of short duration and is not unlike many people with normal hearing experience. The opinion was further based on the Veteran's lack of association between the tinnitus and his military service. Hearing loss The Veteran asserts a bilateral hearing loss disability due to noise exposure in-service. He asserts that he was exposed to acoustic noise based on exposure to jet aircrafts. As an initial matter the Board notes the Veteran's complaints of noise exposure are consistent with his circumstances of service, as his Military Occupational Specialty (MOS) was a jet engine mechanic. Accordingly, the Board concludes that the Veteran's reports of in-service noise exposure are credible. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss disability. The record does not show that the Veteran has current bilateral hearing loss disability has defined by 38 C.F.R. § 3.385. The October 2010 audiometric findings reveal that the Veteran does not have any pure tone thresholds of 40 decibels or greater in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, that the Veteran does not have at least three pure tone thresholds at 26 decibels or greater at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, and that the Veteran does not have speech recognitions scores of less than 94 percent in either ear. See 38 C.F.R. § 3.385. Although the record reflects that the Veteran does have some degree of hearing loss, hearing disability as defined under 38 C.F.R. § 3.385 have not been shown. The Board finds the objective clinical findings to be afforded the greatest weight. The Veteran does not have a hearing loss disability as defined by VA in either ear and service connection for bilateral hearing loss is not warranted. 38 C.F.R. §§ 3.303 and 3.385. With respect to the Veteran's contention that he currently has bilateral hearing loss disability, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). As a layperson, the Veteran is competent to report that he experiences difficulty hearing. However, he is not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385. Absent evidence of a current bilateral hearing loss disability diagnosis, and in consideration of the VA opinion discussed above, the Board concludes that the claims of entitlement to service connection for hearing loss disability must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. Tinnitus The Veteran asserts he experienced tinnitus in-service from exposure to acoustic trauma and it has continued since. As discussed above, the Board finds the Veteran had in service exposure to acoustic trauma. The Board is aware the 2010 VA examiner concluded the Veteran's symptoms were similar to many people with normal hearing experience based on the Veteran's subjective reports of his symptoms. Nevertheless, due to the subjective nature of tinnitus and the VA examiner's continued reference to tinnitus during the provided opinion, the Board does find that the Veteran suffers from a current disability. The Board turns to the nexus element. The Veteran has asserted experiencing tinnitus since service in statements provided to in support of his appeal. As a layperson the Veteran is competent to attest to such observable symptomology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, during the examination the Veteran was unable to indicate when he first noticed his tinnitus symptoms and had no opinion as to etiology. The Board finds the statements made directly to health care provider during the course of examination to be inherently more credible than the statements in the Veteran's notice of disagreement and substantive appeal, which were documents submitted in support of his claim for monetary benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Therefore, the Veteran's assertions are not entitled to probative weight, and the Board finds that there is no credible of evidence of ongoing tinnitus since service. As discussed, a negative medical opinion was provided by the October 2010 VA examiner. The VA examiner reviewed the claim file, the Veteran's description of his history and complaints, and conducted a thorough examination but was unable to link the Veteran's tinnitus to his military service. The audiologist provided a reasoned opinion based on a review of the claims file, interview and examination. Therefore, the October 2010 VA examination is entitled to the greatest probative weight. The Board is aware the Veteran was treated for ear problems in service, as described above. The hearing conservation data examination in March 1967 noted the Veteran had some ringing and a growth in his left ear with an upper respiratory infection. However, in the following April 1968 hearing conservation data examination the Veteran's medical history specifically indicated no "tinnitus prior to first noise exposure" and no "tinnitus following exposure to noise" and the Veteran did not report any complaints of ringing. In addition, no symptoms of tinnitus were reported by the Veteran in subsequent February 1969 and November 1969 examinations. Further, the November 1969 clinical evaluation upon separation noted the Veteran's ears were normal. The Board finds three subsequent examinations with no complaints of tinnitus and the November 1969 clinical evaluation to be afforded greater weight than an isolated instance of ringing as discussed above. The Board has reviewed the evidence of record as a whole and considered the negative medical opinion provided by the 2010 VA examiner, STRs and positive lay statements provided by the Veteran. The Veteran's STRs contain an isolated instance of ringing associated with an ear growth and three subsequent examinations with no signs of tinnitus; the evidence weighs against a finding of tinnitus in service. The Veteran's lay statements lack credibility, as discussed above, and can be given little or no probative weight. The remaining evidence, including a reasoned medical opinion based on the facts reflected in the file and accepted medical knowledge, is against the claim and is entitled to far greater weight. There is no equipoise in the evidence, and no doubt to be resolved. Service connection for tinnitus is not warranted. ORDER Entitlement to service connection for hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ___________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs