Citation Nr: 1333206 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-36 960 ) 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 J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from March 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the St. Louis, Missouri, regional office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. The Board notes that the Veteran first attempted to apply for VA benefits for his contended bilateral hearing loss and tinnitus in a December 2007 informal claim. The RO responded to this informal claim with a letters asking the Veteran to formalize his claim by signing and returning an enclosed VA Form 21-526. However, when the Veteran submitted the formal application submitted in January 2008, he did not include a claim for bilateral hearing loss or tinnitus. But later, in a October 2009 Notice of Disagreement (NOD), on an unrelated issue, the Veteran reasserts his claim for hearing loss and tinnitus with a claim for an eye disability. Following the February 2010 rating decision, the Veteran, in March 2010, submitted a NOD only on the issues of bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. Bilateral hearing loss was not shown in service or within one year of service discharge; and, the preponderance of the evidence fails to establish an etiological relationship between the Veteran's diagnosed hearing loss and his active service. 2. The Veteran denied tinnitus in an April 2013 VA examination. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for a grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, notice was provided to the Veteran in December 2009, prior to the initial adjudication of his claim in February 2010. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). The RO associated the Veteran's service treatment records and VA treatment records with the claims file. While the Veteran's accredited representative asserts that the Veteran was not afforded a VA audiology examination, such assertion has no basis, as such an examination was conducted in April 2013. Neither the Veteran nor his representative has identified any additional relevant evidence aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. In April 2013, VA provided the Veteran with a medical examination and obtained a medical opinion addressing whether his current bilateral hearing loss and tinnitus had an onset during or was caused by active service. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's bilateral hearing loss and tinnitus. The examiner provided a sufficiently detailed description of these disabilities, and the examiner provided an analysis to support his opinion. The Veteran contends, through his representative, that his April 2013 VA examination was inadequate because the RO did not inform the VA examiner that the Veteran's noise exposure was conceded. In the same statement, the representative contends that the Veteran's "exposure to hazardous military noise is highly probable." The Veteran also contends: The VA examiner does not appear to have given much weight to the [V]eteran's account of his in-service experiences, his exposure to loud noise while carrying out his duties, and his contention that that he began noticing difficulty hearing in service and continued to experience symptoms of hearing loss since his discharge from service. The Board notes that the Veteran's complaints are not consistent with VA examination report. In the examination report, the examiner records statements on the Veteran's: work history following service, how his hearing loss affects his daily life, and the Veteran's statement that he does not have recurrent tinnitus. The VA examiner then added that "[The Veteran's] MOS was not particularly associated with acoustic trauma." (Emphasis added). Importantly, the examiner reviewed the claims folder, made a note about the Veteran's discharge examination, and considered the levels of noise he may have been exposed to both in service and subsequently. Additionally, the examiner's rationale indicates that the Veteran's reports were considered as the examiner recounts the Veteran's work history following service. Therefore, the Board finds that the VA examination was adequate. See Dalton v. Nicholson, 21 Vet App. 23, 39-40 (2007) (a VA examination is inadequate if the examiner ignores the veteran's statements of an injury or event during service unless the Board expressly find that the injuries or event did not occur); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2013), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection 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; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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 be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection for bilateral hearing loss will refutably be presumed if it is manifest in-service to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, under 38 C.F.R. § 3.303(b), a nexus to service will be established where there is continuity of symptomatology since service but only with respect to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). The tenets of 38 C.F.R. § 3.303(b) apply to the claim for service connection for hearing loss but not the claim for tinnitus. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. Lay evidence may also be competent, in some situations to establish a nexus between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Court have not explicitly laid out the circumstances in which lay evidence would be sufficient, but the case law suggests that a lay person could note the immediate consequences of an in-service injury. See Trafter v. Shinseki¸ No. 10-3605, slip op. at 17 (Vet. App. Apr. 29, 2013) (veteran's report of depression following alleged failure to promptly treat him was evidence indicating a relationship between an injury and current disability). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App 465, 469 (1994) (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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Merits of the Claim The Veteran contends that he was exposed to acoustic trauma while in service and his current hearing loss and tinnitus are a result of this acoustic trauma. The Veteran asserts that he has suffered from hearing loss and tinnitus since being exposed to loud noise during active duty service. The record includes an April 2013 VA audiological examination for the purpose of evaluating the Veteran's claims on appeal. As will be discussed in more detail later in this decision, such examination revealed a current diagnosis of hearing impairment for VA purposes, but did not diagnose tinnitus. As such Holton element (1) is met for the issue of bilateral hearing loss, but not for tinnitus. The Board acknowledges that the Veteran is deemed to be competent of reporting tinnitus as it is a purely speculative complaint. Charles v. Principi, 16 Vet. App. 370 (2002). However, in the April 2013 VA examination, the Veteran did not report that he has recurrent tinnitus. Thusly, as it concerns tinnitus consistent with the reasoning detailed below, Hotlon element (1) is not met. Turning to Holton element (2), the incurrence or aggravation of an injury or disease in service, the Board notes the Veteran's service treatment records are absent any evidence of complaints, treatment, or diagnosis of hearing loss. His discharge examination showed that his hearing was normal for VA purposes 38 C.F.R. 3.385 (2013). Indeed, when comparing audiology testing between service enlistment and discharge, there is no change in the Veteran's hearing acuity. The result of the Veteran's December 1969 pre-induction examination recorded audiometric results as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 / -10 LEFT -10 -5 -5 / 0 Later, at the Veteran's November 1970 discharge examination, his recorded audiometric results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 / -10 LEFT -10 -5 -5 / 0 While there is no indication in service of hearing impairment and no in-service documentation of complaints of hearing problems, the Veteran contends that he was exposed to noise as a boatswain's mate. The Veteran is certainly competent to report exposure to noise. It is unclear to the Board whether the Veteran's service as boatswain's mate is a military occupational specialty consistent with exposure to loud noises more so than any other military occupation not involving combat. What is not in dispute is that the Veteran does not have any combat citations or documented combat experiences coincident with his service; indeed, the Veteran does not contend combat related noise exposure. But to the extent that military service is generally likely to involve some duties consistent with loud noise from time to time, as may be associated with training maneuvers, it is plausible that the Veteran may have been exposed to loud noise. While an in-service injury is not necessarily established, the Board finds that the Veteran may have been exposed to loud noise in service. 38 U.S.C.A. § 1154(a) (VA shall give due consideration to the places, types, and circumstances of the Veteran's service as shown by such Veteran's service record). Assuming without conceding that the Veteran had in-service noise exposure and has a current diagnosis of bilateral hearing, the final question before the Board is whether the Veteran's current hearing loss is related to his active service, to include noise exposure (Holton element (3)). A relationship or "nexus" to service may in this case be established on either a direct basis or presumptive. See 38 C.F.R. §§ 3.303, 3.309 (2013). The Board now turns to the April 2013 VA examination with following April 2013 addendum. After conducting an audiological evaluation, interviewing the Veteran, and reviewing the claims file, to include the service treatment records, the VA examiner determined that the Veteran's hearing loss as was not at least as likely as not caused by or a result of an event in military service. The examiner then provided the following opinion in the April 2013 addendum as to the etiology of the Veteran's current hearing loss diagnosis: Audiometric thresholds obtained at time of dismissal from military service were normal across test frequencies for both ears. It is believed that little if any further deterioration in hearing occurs after noise exposure ceases, thus the change in hearing (while it may be noise related) it is unlikely to be related to military noise exposure. The Veteran indicated that he has had a work history including farming and working at a cotton gin, as well as having worked at an airport clearing tarmac areas which exposed him to some degree of high noise level, whereas his service MOS was not particularly associated with acoustic trauma. The Board finds the VA examiner opinion highly probative. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The examiner provides a rationale underpinning his findings and cites to the Veteran's service treatment record and specific medical principals on hearing loss. Consideration has been given to the Veteran's lay assertion that his hearing loss and alleged tinnitus are related to his in-service noise exposure. Although 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, the origins of the hearing disorders, 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). The perception of hearing impairment and tinnitus can be competently described, as they are within the experience of a claimant's senses. However, a lay person's assertions regarding the etiology of hearing impairment and tinnitus lacks probative value because such questions are within the realm of those with medical knowledge. Indeed, applicable regulations require audiological testing and other specific findings to properly assess and diagnose hearing impairment. 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). Notwithstanding the Veteran's lack of competence in rendering a medical opinion in these matters, the Board refers to the 37 year time span between the Veteran's first report of any disability and the Veteran's separation from service. The record shows that the Veteran first reported hearing loss and tinnitus in a December 2007 informal claim for VA benefits. The Board notes that the Veteran's record shows that his separation from service occurred in December 1970. Additionally, at the Veteran's separation examination, as discussed, there is a medical finding that the Veteran has normal hearing. These facts weigh against the Veteran's assertion that he his hearing loss and alleged tinnitus are related service. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the Veteran did not report experiencing any symptoms of the claimed conditions for over 35 years after service. This long period without reported problems weighs against the appeal. In particular regard to the Veteran's tinnitus claim, the evidence is contradictory. On the one hand, the Veteran contends in several documents, including his October 2009 NOD and September 2010 substantive appeal, that he has tinnitus that has been present since service. On the other hand, the April 2013 examination report, which was specifically prepared in order to evaluate the Veteran's tinnitus claim, explains that the Veteran denied tinnitus when asked. Tinnitus is a subjective condition that relies upon an accurate history provided by the Veteran. As with any claim before VA, the claimant has a responsibility to cooperate with VA in providing enough information for VA to assist in substantiating the claim. The duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Veteran filed a claim for tinnitus and was afforded and examination to evaluate that claim, but then told the examiner he had no tinnitus. Due to this inconsistency regarding tinnitus, the Board gives the Veteran's statements little weight. Indeed, to the extent that the Veteran claims that tinnitus began in service, his contradictory statements on the tinnitus claim significantly undermines his credibility. Accordingly, the Board finds no current diagnosis of tinnitus, and as stated above, the Veteran statements are not probative on the issue because they are not credible. In view of the circumstances, the preponderance of the evidence weighs against a finding that the Veteran's current bilateral hearing loss and claimed tinnitus are related to the any acoustic trauma sustained in service. Further, as stated above there is no credible or competent evidence to support that the Veteran developed his hearing loss within a year after his service. Therefore, the Veteran cannot prevail on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, under 38 C.F.R. § 3.303(b) (2013), a nexus to service will be established where there is continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Board finds that due to the lack of evidence of symptoms until many years following service continuity of symptomology in not shown. The Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs