Citation Nr: 1333247 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-13 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had service in the Marine Corp Reserves including from January 1984 to September 1984 and from June 2001 to August 2001. The Veteran also had active service in the Marine Corps from January 2004 to January 2005 and June 2005 to May 2007. The complete dates and type of service have not been verified. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. The Veteran experienced in-service noise exposure. 2. The Veteran reports bilateral hearing loss and tinnitus. 3. There has been no clinical demonstration of bilateral hearing loss disability for VA purposes at any time, to include during the period on appeal. 4. The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran's tinnitus is causally or etiologically related to an in-service event, injury, or disease, or had its onset in, or one year after, active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. § 1110, 1131, 1154(a) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that through a VCAA letter dated November 2010 the Veteran was informed of the information and evidence necessary to substantiate the claims for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, he was informed of the criteria for assignment of an effective date, and/or disability rating, in the event of award of the benefit sought. The VCAA letter to the Veteran was provided in November 2010, prior to the initial unfavorable decision in January 2011. The Board also finds that there has been compliance with the VCAA duty to assist provisions. The record in this case includes service treatment records, VA treatment records, a VA examination report, and lay evidence. The Veteran has not alleged receiving any private treatment. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was also scheduled for a hearing before the Board but withdrew his request in November 2011. The Veteran was provided a hearing before a Decision Review Officer (DRO) in August 2011, the transcript of which has been associated with the claims file. The Board notes that 38 C.F.R. § 3.103(c)(2) requires that the VA, when conducting a hearing, fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue or issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's hearing, the DRO noted the issues of service connection for bilateral hearing loss and tinnitus. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars. The representative then asked questions to ascertain the etiology and extent of the Veteran's asserted disabilities. The representative specifically asked the Veteran about his military noise exposure, daily impact of his hearing loss, severity of his hearing loss, and onset of his tinnitus. The DRO did not suggest the submission of evidence that may have been overlooked, or solicit information as to any potentially available outstanding relevant evidence. However, the Board finds that the Veteran has not been prejudiced in this regard as, in a signed statement dated in August 2011, the Veteran indicated that he had provided all information and evidence that would support his claim, or had no other information or evidence to give to VA to support his claim. Neither the Veteran nor his representative has identified any prejudice to the Veteran due to failure to comply with 38 C.F.R. § 3.103(c)(2). The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. The Veteran's representative asked questions to draw out the etiology of the Veteran's tinnitus as well as the extent of his bilateral hearing loss. As such, the Board finds that any error in notice or assistance provided during the Veteran's hearing, pursuant to the duties set forth in 38 C.F.R. § 3.103(c) (2), constitutes harmless error. The Veteran was provided a VA examination in December 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with the claims file, and the Veteran's history and complaints were recorded. The examination report sets forth detailed examination findings to include a nexus opinion with adequate bases for the opinion. As such, the examination report is adequate to decide the claim of service connection. Furthermore, neither the Veteran nor his representative has challenged the adequacy of the examination. Thus, further examination is not necessary regarding the issues on appeal. II. Service connection - General In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also 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. 38 C.F.R. § 3.303(d). "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). III. Hearing Loss For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has experienced bilateral hearing loss as a result of in-service noise exposure. The Veteran asserts that his work as a generator mechanic and Maintenance Chief exposed him to extreme engine noise. He also asserts that he was exposed to gun fire, grenades, fixed charge explosives, and artillery fire. The Veteran's DD-214's reflect that his primary specialty was Utilities Chief, and that he served with an engineer maintenance Company. As such, his contentions with regard to noise exposure or acoustic trauma in service are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). As such, the Board finds his assertions as to noise exposure to be competent and credible. Service treatment records contain the results from several audiometric tests conducted over the Veteran's military career. An audiometric test completed in May 1983, for enlistment in the Marine Corps Reserve, revealed the pure tone threshold results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 In a report of medical history completed at that time, the Veteran denied a history of hearing loss. An audiometric test was also conducted in August 1984, for release from active duty. The pure tone threshold results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 5 5 LEFT 20 10 10 10 5 An audiometric test was conducted in January 1994. The pure tone threshold results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 5 LEFT 5 5 5 0 5 The record contains a report of an in-service audiometric test conducted in December 1997, the pure tone threshold results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 0 -5 5 LEFT 20 5 5 0 0 In December 2010 the Veteran was provided a VA audiological examination. The examiner reviewed the claims file, medical history, and noted the Veteran's in-service noise exposure. The examiner also noted that the Veteran reported his alleged hearing loss affected his daily activities, stating that he had difficulty hearing at work, but mainly in loud environments. He also stated that he needed his wife to repeat herself frequently and finds it difficult to hear when there are other people talking or when background noise is present. A pure tone threshold and Maryland CNC speech recognition test were also conducted, the results of which were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 10 10 LEFT 10 5 10 10 0 Maryland CNC right ear: 100% Maryland CNC left ear: 100% The examiner reported that no hearing loss was present and that the Veteran's hearing was normal for 250 - 8000 Hz. She also noted that the Veteran did not experience any shift in hearing between enlistment and his December 2010 VA examination. As noted above, impaired hearing is considered a disability for VA purposes when the auditory threshold at any frequency (500 HZ - 4000 HZ) is 40 decibels or greater, or when the threshold is at least 26 decibels at any three frequencies (500 HZ - 4000 HZ) or when the Maryland CNC test scores are less than 94 percent. The evidence in this case reflects that the Veteran does not currently have a hearing loss disability for VA purposes in either ear. As described, audiometric testing in December 2010 revealed that the Veteran had no auditory thresholds at any frequency above 10 decibels and his Maryland CNC test score was 100 percent bilaterally. These results do not reflect that the Veteran has a hearing loss disability as established by 38 C.F.R. § 3.385. The Veteran has not challenged the accuracy of the December 2010 audiometric results and has not submitted any additional evidence in support of his claim that his reported hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385. While the Veteran is competent to report what comes to him through his senses (see Layno v. Brown, 6 Vet. App. 465 (1994)), including diminished hearing capacity, he is not competent to assess that he has a hearing loss disability for VA purposes. Such determination may only be made by audiometric testing, and CNC Word List speech recognition testing. In summary, the Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported bilateral hearing loss; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). Accordingly, the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied. IV. Service connection for tinnitus The Veteran is also currently seeking service connection for tinnitus. Preliminarily, at a VA examination in December 2010, it was confirmed that the Veteran has tinnitus. The Court of Appeals for Veterans Claims (Court) has held that lay evidence is competent and may be sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person 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, 1377 (Fed. Cir. 2007). The Court has specifically held that tinnitus is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board also notes that when tinnitus is present as an organic disease of the nervous system, it is a "chronic disease" listed under 38 C.F.R. § 3.309(a), and 38 C.F.R. § 3.303(b) does apply, such that service connection may be established by demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In October 2010 the Veteran filed a claim for service connection, including for tinnitus. As part of his claim the Veteran stated that he had been exposed to loud noises in service and had experienced hearing trouble and constant tinnitus ever since. Specifically, in a statement made in connection with his claim, the Veteran asserted his tinnitus began in December 1983. The Veteran also testified with his wife before a DRO in August 2011. At the hearing, the Veteran again reiterated his in-service noise exposure and reported that he first noticed ringing in his ears in 1990 while at a rifle range. He also stated that he has had tinnitus ever since 1990. Additionally, the Veteran explained that the reason he did not report ringing in his ears on any of his post-deployment health assessments is because he did not want to be placed on a medical hold and was in a hurry to get home. He also stated that he did list a shoulder injury at one point and was told that he could receive treatment at home and would not be placed on medical hold unless he wanted to be. Service treatment records for the Veteran contain numerous medical examination reports. Beginning with his enlistment physical examination in May 1983, the Veteran was noted to be in good health and did not report any ear, nose, or throat (ENT) problems, although he did report a history of broken bones and having his tonsils removed. In August 1984 the Veteran underwent another medical evaluation the report of which contains a normal audiological test and the clinical evaluation revealed normal systems. A medical examination conducted in March 1988 reveals a normal clinical picture, except for some scars, and an attached report of medical history contains a statement that the Veteran was in good health. The Veteran did report a history of broken bones and bone, joint or other deformities but did not report any ENT problems. In November 1992 a medical evaluation report reveals a normal clinical picture with the exception of some scars, and indicates that the Veteran was negative for any interim history. On audiology examination in January 1994, it was noted that it was unknown as to whether the Veteran had an ENT problem at the time of the test. A medical evaluation and attached report of medical history from December 1997 reflects that the Veteran reported no ear, nose or throat trouble. He had normal hearing in the 500 - 4000 Hz range. The report also reflects that the Veteran reported he had experienced recent weight loss or gain, along with broken bones and pneumonia. Finally, the Veteran reported no ENT problems at a medical examination conducted in March 2006. He did report a painful shoulder, elbow or wrist, numbness or tingling, knee trouble, a concussion, and broken bones. The report also contains a written notation indicating that the Veteran was experiencing numbness in his 4th and 5th digits of his left hand and had no other medical complaints. In August 2004, the Veteran completed a post-deployment health assessment form. The Veteran reported experiencing diarrhea during deployment but specifically denied ringing of the ears. The assessment also indicated that the Veteran did not have any medical or dental problems develop during that period of deployment. In February 2006, the Veteran completed another post-deployment health assessment. The Veteran reported numbness and tingling in his hands or feet but reported that he did not experience ringing of the ears. A March 2007 post-deployment assessment reflects that the Veteran was placed on a medical hold for numbness in his left hand. The Veteran did not report ringing of the ears. At his December 2010 VA examination, the Veteran again reported that he first noticed his tinnitus in 1990 while at a rifle range. He went on to state that his tinnitus was constant and that it sometimes interfered with being able to fall asleep. After examining the Veteran, reviewing the claims file and medical history of the Veteran, the examiner concluded that the Veteran's tinnitus was not at least as likely as not a result of military noise exposure. The examiner noted the absence of any complaints of ringing in the ears on the Veteran's post-deployment health assessments in 2004, 2006, and 2007. The examiner also stated that the Veteran had normal hearing and no shifts between the time of enlistment and examination. Further, the examiner noted an absence of ear or hearing problems that would require medical follow-up or which, if treated, would result in a change in auditory thresholds. Finally, the examiner opined that: There is a high correlation between hearing loss, tinnitus and noise exposure. The presence of a ratable hearing loss from the service or audiometric configuration consistent with noise exposure is a strong indicator that any reported tinnitus was also from noise exposure. Conversely, normal hearing from the service with no hearing shift strongly suggests any reported tinnitus is less likely to be from noise exposure in service. Since the Veteran's hearing was normal today (after separation) with no significant shift in hearing between enlistment and today, it is less likely as not the reported tinnitus was from military noise exposure. As noted above, the Veteran's DD-214's list his military occupational specialty (MOS) at separation as Utilities Chief and confirms his service in Iraq. As they are confirmed, the Board finds the Veteran's statements regarding his in-service noise exposure to be credible and concedes his exposure to acoustic trauma. However, the evidence in this case weighs against finding that the Veteran's tinnitus was caused or aggravated by service. Service treatment records do not contain any reports of tinnitus or ENT problems. Furthermore, the Board finds the December 2010 examiner's negative medical opinion to be well reasoned and contain an adequate explanation of her bases. The examiner noted the Veteran's noise exposure, conducted an examination, and provided a well reasoned opinion. As such, her opinion is highly probative. The Board recognizes the Veteran's statements that his current tinnitus is etiologically/causally related to his in-service noise exposure. As described, the Veteran is competent to provide a diagnosis of tinnitus, i.e., ringing of the ears because it is not a complex medical question. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation). However, in this case the Board does not find the Veteran to be a credible historian. First, the Veteran has not consistently recalled when his tinnitus began. On his claim, the Veteran reported that he began experiencing tinnitus in 1983. However, he has since reported experiencing tinnitus beginning in 1990 at his DRO hearing and VA examination. Additionally, while he was provided numerous medical evaluations during service, the Veteran consistently denied any ENT problems on his medical history reports. However, he did report a history of other ailments such as broken bones, tonsil removal, weight loss/gain, numbness and tingling in his fingers, and shoulder pain. Had the Veteran been experiencing any such tinnitus symptoms one would logically have expected him to report them as he took time to consider and report his history of other ailments. The Board finds the March 2006 report of medical history to be particularly probative as it contains a notation that the Veteran had no medical complaints beyond numbness in his fingers. Furthermore, the Veteran specifically denied experiencing any ringing of the ears on his 2004 and 2006 post-deployment assessments, and did not report any ringing of the ears on his 2007 post-deployment assessment. The Board recognizes that he testified that he did not report any tinnitus because he did not wish to be placed on a medical hold. However, this explanation is in conflict with the Veteran's actions. First, as discussed, he did in fact report other ailments on his post-deployment assessments. Second, in 2007 he was placed on a medical hold for numbness in his fingers but still did not report any ringing of the ears. The Board finds it unlikely that given the number of medical evaluations and opportunities to report tinnitus since 1983 that the Veteran would not once mention his symptoms, and specifically denied ringing in his ears on post-deployment health assessments. As such, the Board does not find the Veteran to be a credible historian and his assertions are provided little weight. While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous records, silence in a record can sometimes be relied upon as contradictory evidence; specifically, the silence in record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). For this negative inference to be made, the Board must make two findings: first, that the record being evaluated is complete in relevant part; and, second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred. The Board makes both findings in this case. First, the record contains the Veteran's service treatment records, VA treatment records, VA examination report, and the Veteran has not alleged receiving any additional treatment. Second, the Board finds that tinnitus or ringing in the ears is something that ordinarily would have been recorded had they occurred as the Veteran clearly reported other issues as they came up. Moreover, he specifically denied ringing in his ears on post-deployment health assessments. In sum, the Board finds that the evidence in this case weighs against finding that the Veteran's tinnitus was caused or aggravated by his service. As such, service connection is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs