Citation Nr: 1332058 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 13-03 226 ) 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 Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to October 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal was previously remanded by the Board in June 2013. The claims have been returned for further appellate adjudication. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1 A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year. 2. Tinnitus did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letters in September 2009 and April 2010 that fully addressed all notice elements and were issued prior to the initial RO decisions in this matter. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letters informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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). Regulations and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. It is noted that, for the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 (2013). Moreover, from a clinical standpoint, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the evidence of record, the Veteran's service treatment records indicate that the Veteran's hearing was 15/15 on induction in March 1946. The Veteran's discharge examination, dated October 1946, indicates that his hearing was 15/15 on whisper and spoken voice testing. There was no treatment for hearing problems in-service and there was no indication of ear disease or defects at discharge. The Veteran's DD 214 indicates that he served from March 1946 to October 1946 in the Navy. There is no combat noted in the Veteran's file and the Veteran has not contended that his hearing loss is related to combat service. A December 2006 VA treatment note is the first objective indication of hearing problems. Results revealed a bilateral sensory hearing loss of mild to moderately severe degree beginning at 2000 Hz for the right ear and mild to severe degree beginning at 2000 Hz for the left. Acoustic immittance was consistent with degree and type of hearing loss. Word recognition was 92% in the right ear and 96% in the left ear. The Veteran was afforded a VA examination in February 2010. The Veteran reported that he was exposed to noise in-service during the repair of ships in dry dock. Additionally, he indicated a forty year history of occupational noise exposure as a truck driver and a history of recreational noise exposure from hunting and chain saws. The examiner indicated bilateral low to high frequency sensorineural hearing loss with poor word recognition ability at 58 percent in the right ear and 64 percent in the left ear. The examiner opined that the Veteran's hearing loss is less likely than not related to acoustic trauma during active service; noting that this exposure to high risk noise in-service while present, was limited due to his short stay in the service. The potential of noise induced hearing loss where his exposures were limited by time is considered low. He did not actually perform duties involved with noise exposure. However, as an administrator he indicated he was often near the military workers who were repairing ships while in dry dock. The examiner opined that the present hearing status is more likely than not the result of post-military noise with significant aggravation from the normal effects of aging. The Board notes that the Veteran submitted a private audiologist's opinion dated September 2010 with an additional letter dated November 2010 indicating that it is a hypocrisy for the February 2010 VA examination to attribute the Veteran's hearing loss to post-service noise exposure and aging rather than his eight months of active service. However, there is no rationale for this opinion. The AMC obtained addendums dated June 2013 and August 2013 from the February 2010 examiner. The examiner reiterated that the Veteran's current hearing loss and tinnitus is less likely as not related to in-service noise exposure. The rationale was that he had limited involvement with high risk noise and he had significant post-service noise exposure. The examiner additionally indicated that the Veteran's tinnitus, if valid, is less likely as not related to noise exposure during active service but rather attributable to other medical factors. More recent VA treatment notes indicate that the Veteran received hearing aids from a VA Medical Center. In conclusion, the Board finds that a preponderance of the evidence is against a finding that the disabilities are related to active service, any incident of active service or is secondary to any service-connected disability. The Board observes that there are conflicting medical opinions contained in the claims file. In this regard, the Board observes its duty to assess the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds the opinion of the examiner who conducted the Veteran's compensation and pension examination and supplied opinions to be more probative than the private opinion as the VA examiner had an opportunity to review the Veteran's claims file and review records of treatment and provided a complete rationale for his opinions. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (an opinion that is based on review of the medical evidence is more probative than an opinion that is based on the Veteran's reported history). The Board additionally notes that the Veteran expressly denied problems at his separation examination, and the clinical record reveals no treatment or diagnosis for such problems for many years after discharge. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes the very recently decided Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). In this case, the claimed tinnitus disability is not a decidedly chronic disability. Thus, a discussion of whether there has been continuity of symptomatology since service for that disability cannot stand as a basis for an award of service connection in this case. The Board acknowledges the statements of the Veteran indicating a continuity of symptomatology of hearing loss since service, which were submitted in connection with his claim for benefits. However, the record reflects a significant gap of over 60 years between discharge and evidence of his first treatment or complaints of hearing loss. He additionally filed a VA benefits claim in 1950 without any mention of auditory symptoms. Moreover, the Veteran has reported significant post-service occupational acoustic trauma for 40 years as well as recreational noise exposure. Based on the foregoing, the Board finds the Veteran's statements asserting a nexus between current hearing loss and in-service noise exposure to not be credible. In addition, the Veteran lacks the necessary medical expertise to say that a hearing loss or tinnitus identified by objective evidence long after service is the result of in-service trauma as opposed to a post-service event or process. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss and tinnitus are related to active service, to any incident of active service, or are secondary to any service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs