Citation Nr: 1333260	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  12-27 300	)	DATE
	)  
	)

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


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel





INTRODUCTION

The Veteran served on active duty from September 1980 to September 1984.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied service connection for a bilateral hearing loss disability and tinnitus.

The Virtual VA and VBMS electronic claims files associated with the Veteran's claims have been reviewed and all relevant evidence therein taken into account.


FINDINGS OF FACT

1. A bilateral hearing loss disability was not shown in service or within the first post-service year, and is not etiologically related to a disease, injury, or event in service.

2. Tinnitus is not etiologically related to the Veteran's period of active service.


CONCLUSIONS OF LAW

1. A bilateral hearing loss disability was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veteran's Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in November 2010, prior to the initial unfavorable adjudication in September 2011. This letter advised the Veteran of what evidence was necessary to substantiate his claims, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA audiological examination in July 2011. The examination was adequate because the examiner considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examination, conducted a thorough audiological examination of the Veteran, and provided a sufficient supporting rationale for the opinion. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds the examination report to be thorough, complete, and sufficient basis upon which to reach a decision on the Veteran's claims for service connection for a bilateral hearing disability and tinnitus. 

Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied.

II. Service Connection for a Bilateral Hearing Loss Disability and Tinnitus

The Veteran contends he has a bilateral hearing loss disability and tinnitus as a result of his military service. As explained below, the preponderance of the evidence is against a finding of a nexus between his bilateral hearing loss disability and tinnitus and his military service.

A. Bilateral Hearing Loss Disability

Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. at 157. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). 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, (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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id.

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). 

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § 3.303(b), 3,309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

With respect to the first Shedden element, there is sufficient evidence to indicate the Veteran has a current disability. The Veteran was provided with a VA audiological examination in July 2011. The results of that exam were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
50
40
50
60
LEFT
35
35
25
35
45

Speech recognition was 80 percent in the right ear and 86 percent in the left ear. The examiner was competent, conducted a thorough examination, considered the Veteran's lay statements, and provided a thorough supporting rationale. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. There is nothing in the record to indicate that the examination is not credible. Therefore, the Board finds that the Veteran has a current disability. 38 C.F.R. § 3.385.

Second, there is sufficient evidence to indicate the presence of an in-service event or injury. The Veteran's DD 214 shows that he served as a cannon crewman. The Veteran has stated that his hearing loss is the result of being exposed to cannon fire and that he was not provided hearing protection. As the noise exposure the Veteran has described is consistent with the circumstances of his service, the in-service element of service connection has been met. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

Turning to the third Shedden element, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss disability is causally linked to his service. There are two conflicting medical opinions regarding nexus. The positive medical opinion is from an October 2010 VA audiological evaluation. The evaluator found that the Veteran's bilateral hearing loss disability was at least as likely as not related to his service based on the results of the audiogram and the Veteran's statements. The Veteran reported that he did not use hearing protection in service and that while he had occupational and recreational noise exposure after service he always used hearing protection at work and sometimes used it during recreation. The examiner did not note whether the claims file was available and did not mention the Veteran's service treatment records. The evaluator was competent and there is nothing in the claims file to indicate that the opinion is not credible. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312.

The negative opinion is from the Veteran's July 2011 VA audiological examination. The examiner determined that the Veteran's bilateral hearing loss disability was less likely than not caused by or the result of noise exposure. The examiner based the opinion on a lack of evidence of hearing loss in service, including threshold shifts, and on the fact that the Veteran reported significant post-service occupational and recreational noise exposure during which he did not use hearing protection. The examiner noted the claims file and the October 2010 evaluation were reviewed. As noted above, the examiner was competent and the examination report credible.

Due to the conflicting opinions, VA obtained an addendum opinion in September 2011 which analyzed both the July 2011 examination and the October 2010 evaluation. In the opinion, the reviewing audiologist assigned more weight to the July 2011 examination because it was specifically conducted for compensation purposes, was based on a more complete factual record as the examiner had the claims file, and obtained more details from the Veteran's in-service and post-service noise exposure.

In weighing the two medical opinions, the Board finds that the July 2011 VA examination is entitled to more weight. The July 2011 examination was based on a more complete factual record, as the examiner had access to the claims file, reviewed the October 2010 evaluation, and elicited additional relevant facts from the Veteran. While review of the claims file is not a dispositive factor in favoring one opinion over another, it can be taken into account when analyzing the factual bases of an opinion. See Rodriguez-Nieves, 22 Vet. App. at 304-05.

The Veteran also relayed a different account of his post-service noise exposure in the July 2011 examination. He informed the October 2010 VA evaluator that he had occupational noise exposure post-service, but that he used hearing protection. He then told the July 2011 VA examiner that he did not use hearing protection post service, even though his employer both provided and required it. Factual accuracy is necessary for a well-reasoned, and therefore persuasive, medical opinion. Id. at 304. Here, the October 2010 evaluation relied on inaccurate facts regarding the Veteran's post-service noise exposure and therefore its probative value is diminished.

Additionally, the July 2011 examiner provided a more thorough supporting rationale than the October 2010 evaluator, which is a crucial factor in determining the probative weight of a medical opinion. Id. (stating that "most of the probative value of a medical opinion comes from its reasoning"). The July 2011 examiner cited to the Veteran's inconsistent statements regarding post-service noise exposure and his normal hearing and lack of threshold shifts in service. The October 2010 evaluator cursorily cited to the Veteran's service as a cannon crewman, but did not mention the Veteran's in-service audiograms. 

Based on these facts, the Board finds the July 2011 medical examination carries more probative weight on the issue of nexus as it is based on the correct facts, applies accepted medical principles, and provides a strong supporting rationale for the opinion. See id. at 302-05.

Turning to the lay evidence, the Veteran has provided statements indicating that he has had a bilateral hearing loss disability since service. He is competent to report the symptoms, although not necessarily competent to establish a nexus. Jandreau, 492 F.3d at 1377; Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Regardless, the Veteran has made inconsistent statements concerning his post-service noise exposure levels and his use of hearing protection. As stated above, the Veteran told the October 2010 VA evaluator he used hearing protection while working post-service, but told the VA examiner in July 2011 that he did not use hearing protection even though his employer required it. Although such inconsistencies may be due to the passage of time, their presence undermines the credibility of the Veteran's statements. 

Further, there are no medical records showing that the Veteran has sought treatment for or complained of a bilateral hearing loss disability at any point from his separation from service in September 1984 to the filing of his claim in October 2010. While some complaints of difficulty hearing are present, these have been exclusively related to the build-up of hardened cerumen, which he has been successfully treated for on several occasions. On these occasions the Veteran made no mention of a bilateral hearing loss disability. Such a lack of contemporaneous medical evidence and long periods without complaint can be considered in determining the credibility of lay statements. See id.; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Here, the lack of contemporaneous medical records and absence of complaints of a bilateral hearing loss disability during the 29 years since separation support a finding that the Veteran's statements are not credible. Due to the inconsistency of the Veteran's statements, the length of time between service and complaints, and the lack of medical evidence, the Board finds the Veteran's statements are not credible with respect to a nexus, and assigns them no probative weight. 

Since the Veteran's lay statements concerning a nexus have no probative weight, the issue is determined by the medical evidence of record. As the July 2011 VA examination carries more weight than the October 2010 evaluation, the Board finds that the preponderance of the evidence is against a finding that there is a nexus between the Veteran's bilateral hearing loss disability and his service.

Regarding presumptive service connection under 38 C.F.R. § 3.309, sensorineural hearing loss was not diagnosed in service or within one year of separation from service, and therefore does not qualify on that basis for the presumption. The Veteran's medical records are negative for any complaints of or treatment for a bilateral hearing loss disability from his separation from service in September 1984 to the filing of his claim in October 2010. There are some complaints of hearing difficulties, but these complaints concern the build-up of hardened cerumen in the Veteran's ears, and not a bilateral hearing loss disability.

Concerning continuity of symptomatology, the Veteran's bilateral hearing loss did not manifest in-service. The Veteran's in-service audiograms were as follows:

September 1980




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
5
5
LEFT
15
15
15
5
10

February 1983




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
5
LEFT
15
15
15
10
10

The two audiograms show the Veteran's hearing remained within normal limits during service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). There is no indication of a threshold shift in the Veteran's hearing. Based on these results, there were not in-service manifestations sufficient to identify the disease nor was there sufficient observation to establish chronicity. Therefore, service connection for a bilateral hearing loss disability based on continuity of symptomatology is not warranted. 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F.3d 1331.

Although the Veteran has established a current disability and an in-service injury or event, the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss disability is related to his service. Since 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); 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. For these reasons, the claim is denied.

B. Tinnitus

The legal framework outlined above also applies to the Veteran's claim for service connection for tinnitus.

First, there is sufficient evidence to indicate the presence of a current disability. The Veteran has stated that he currently has tinnitus, which he is competent to report. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App 370, 374 (2002). Based on this evidence, the Board finds the Veteran currently has tinnitus.

Second, as stated above, the Veteran served as a cannon crewman and was exposed to cannon fire in service. As the noise exposure the Veteran has described is consistent with the circumstances of his service, the in-service element of service connection has been met. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

With respect to the third element as outlined in Shedden, the preponderance of the evidence is against a finding that the Veteran's tinnitus is causally related to his military service. The July 2011 VA examination is the only medical opinion of record regarding tinnitus. The examiner found it was less likely as not that the Veteran's tinnitus was caused by his military service. This was based on the Veteran's statement that he experiences ringing in his ears approximately twelve times a year for a few seconds, as well as his statement in October 2010 that he experiences ringing in his ears approximately five times a year. The examiner opined that since the tinnitus occurred so rarely, it was more likely due to normal variations that are experienced by most people with or without hearing loss, as opposed to being due to acoustic trauma. The July 2011 examination is both competent and credible, and, as the only medical evidence of record as to tinnitus, holds considerable probative weight.

Turning to the lay evidence, the Veteran has only reported what he conveyed during the two examinations, which is that he has intermittent tinnitus occurring approximately twelve times a year and lasting a few seconds. As such, the facts concerning the Veteran's tinnitus are essentially undisputed. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's tinnitus is etiologically related to his service. 

With respect presumptive service connection for tinnitus under 38 C.F.R. § 3.309, tinnitus is not a recognized chronic disease and thus cannot be service connected under the chronic disease presumption. 38 C.F.R. §§ 3.307, 3.309(a). 

Establishing service connection through continuity of symptomatology is likewise limited to statutorily recognized chronic diseases, and therefore cannot be used to establish service connection for tinnitus. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker, 708 F.3d 1331.

Although the Veteran has established a current disability and an in-service injury or event, the preponderance of the evidence weighs against a finding that the Veteran's tinnitus is related to his service. Since 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); 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. For these reasons, the claim is denied.


ORDER

1. Entitlement to service connection for a bilateral hearing loss disability is denied.

2. Entitlement to service connection for tinnitus is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs