Citation Nr: 1333263 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-36 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia 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 ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam Era from September 1964 to August 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). The claim was previously remanded by the Board in June 2011. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a May 2007 statement from the Veteran and Social Security Administration inquiries dated in September 2004 and May 2007. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein have been accomplished. 2. The Veteran's bilateral hearing loss did not begin in service, is not causally related to his military service and sensorineural hearing loss was not compensably disabling within one year following separation from active duty. 3. The Veteran's tinnitus did not begin in service and is not causally related to his military service. CONCLUSIONS OF LAW 1. The Veteran's bilateral hearing loss was not incurred in, or related to, his military service, and sensorineural hearing loss is not presumed to be related to military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. The Veteran's tinnitus was not incurred in, or related to, his military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in December 2011. The Board notes that in a May 2007 statement, the Veteran asserted that he is in receipt of Social Security Administration benefits which other records on file seem to confirm. However, there is no indication that these benefits are related to the etiology of hearing loss or tinnitus. The Veteran has not identified these records as relevant and a remand for these records is therefore not required. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). VA therefore fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Legal Principles Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis In a November 1963 pre-induction examination, the Veteran reported that he had not had any problems with his ears, stating "I am in good health." The examiner also noted normal ears. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 Right 5 (20) 0 (10) 0 (10) - 5 (10) Left 20 (35) 5 (15) 5 (15) - 15 (20) (Note: Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards and, where applicable, are in parentheses.) In a September 1964 examination, the Veteran again noted that he had not had any problems with his ears and stated "I am in good health." The examiner noted normal ears and objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 Right -5 (10) -5 (5) -5 (5) - 5 (10) Left 5 (20) 5 (15) 0 (10) - 5 (10) In a June 1966 separation examination, the Veteran again noted that he had not had any ear problems, stating "I am in good health." A statement of medical condition signed by the Veteran also confirmed that there had been no change in the Veteran's medical condition since the last medical examination. The examiner noted normal ears. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 6000 Right 0 (15) 5 (15) 0 (10) 5 (15) 0 (5) 10 (20) Left 0 (15) 5 (15) 0 (10) -5 (5) 0 (5) 15 (25) Records reveal that the Veteran filed a claim for another disorder in 1993. Medical records and other documents associated with that claim fail to make reference or findings of hearing loss or tinnitus. VA medical records dated January 2003 noted that the Veteran's chief compliant was difficulty hearing and that the Veteran had a history of bilateral intermittent tinnitus. It also noted that while in service, the Veteran served in the artillery and that post-service, he worked as a carpenter and had done some hunting. The examiner noted bilateral sensorineural hearing loss based on the following: Puretone Threshold 250 500 1000 2000 3000 4000 6000 8000 Right 10 20 30 30 30 50 65 55 Left 20 20 30 30 50 80 90 95 In a March 2003 pension claim, the Veteran asserted that his hearing loss began in 1966. In a December 2008 service-connection claim, the Veteran clarified that while in service he was regularly exposed to howitzers and-since he claimed to have not been exposed to "any loud noises" since the military-he believed that was the cause of his hearing loss and tinnitus. In a February 2009 VA examination, the examiner noted that the Veteran's pre-induction examination and separation examination both revealed bilateral hearing "within normal limits." The Veteran reported in-service noise exposure due to howitzers and firing ranges. His post-service occupational noise exposure included carpentry but the examiner noted that his recreational noise exposure was "unremarkable." The examiner also noted that the Veteran reported that his bilateral tinnitus began right after his military service but the Veteran did not provide a date or the circumstances surrounding the onset. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 Right 15 25 25 30 55 Left 20 40 35 55 80 Maryland CNC Speech Discrimination Right 96 Left 96 The examiner diagnosed the Veteran with mild to moderately-severe hearing loss above 2000 Hertz (Hz) in the right ear and mild to severe hearing loss above 500 Hz in the left ear. The examiner opined that because the Veteran's separation examination indicated normal hearing, it was less likely as not that the hearing loss originated during his military service. She also opined that the Veteran's tinnitus was at least as likely as not due to the same etiology as the hearing loss. Moreover, since the Veteran stated that tinnitus began after military service, she opined that it was less likely as not that the tinnitus was related to his military service. In a March 2009 notice of disagreement, the Veteran stated that he "had a slight hearing loss when discharged from service, and it gradually became worse." He reiterated that he had been exposed to howitzers in service and that post-service he had not worked near any "excessive loud noises" except for a "small carpenter job for maybe eight months." In March 2009, the Veteran's two sisters submitted a joint-statement noting that a few years after the Veteran returned home from service, he would often have the television and radio playing loudly. They also asserted that he had not been exposed to any loud noises after service. In a September 2009 VA Form 9, the Veteran further elaborated on his in-service noise exposure, claiming that he was near howitzers while loading guns in the tanks and during week-long drills each month where guns went off daily "approximately three to four hours off and on." In a July 2011 VA examination, the examiner diagnosed the Veteran with bilateral hearing loss at 500 Hz to 4000 Hz and at 6000 Hz and higher. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 6000 8000 Right 20 35 35 45 65 70 75 Left 40 55 55 75 85 100 100 Maryland CNC Speech Discrimination Right 96 Left 96 The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service because the Veteran's separation examination revealed normal hearing bilaterally and because there were "no significant threshold shifts" when comparing the entrance and exit hearing examinations. The examiner also noted that the Veteran's current tinnitus was at least as likely as not a symptom associated with hearing loss. The examiner opined that the Veteran's tinnitus was not caused by or a result of military noise exposure because he stated that the tinnitus began after leaving the military. In a September 2013 informal hearing presentation, the Veteran's representative argued that the Veteran should be entitled to service connection based on the noise exposure he experienced working in field artillery. Although the Veteran has a current diagnosis of bilateral hearing loss and tinnitus, the preponderance of the evidence weighs against a finding that they were incurred in, or are related to, his activities during service. For these reasons, the claim is denied. The Board will address the elements of service connection in turn. First, the Veteran currently has bilateral hearing loss and 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 Hz, 1000 Hz, 2000 Hz, 3000 Hz, or 4000 Hz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC speech discrimination test are less than 94 percent. 38 C.F.R. § 3.385. In the July 2011 VA examination, objective testing showed that for 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz, the right ear thresholds were 20 dB, 35 dB, 35 dB, 45 dB and 65 dB, respectively. The left ear thresholds at the same frequencies were 40 dB, 55 dB, 55 dB, 75 dB and 65 dB. Therefore, the right ear met or exceeded 40 dB at two frequencies and the left did so at all five. The right ear exceeded 26 dB at four frequencies and the left did so at all five. Thus, although the Veteran's Maryland CNC speech discrimination scores were 96 percent bilaterally, the Veteran currently has impaired hearing. 38 C.F.R. § 3.385. In the July 2011 VA examination, the examiner noted that the Veteran complained of bilateral tinnitus. Tinnitus is a subjective disorder and a diagnosis can be based on the lay testimony of the Veteran. Charles v. Principi, 16 Vet. App. 370, 347 (2002). Thus, the Veteran also has current tinnitus. Second, the Board finds that the Veteran's hearing loss and tinnitus did not begin during service. There is little evidence showing that the Veteran's hearing changed during service. Comparing the objective testing from the June 1966 separation examination to the results from the September 1964 examination reveals that at the frequencies between 500 Hz and 4000 Hz, puretone thresholds showed a minor increase in only the right ear at 500 Hz, 1000 Hz and 2000 Hz. All other frequencies either stayed the same or decreased. Comparing the June 1966 separation examination to the results from the November 1963 examination reveals that at the frequencies between 500 Hz and 4000 Hz, puretone thresholds showed a minor increase in only the right ear at 500 Hz. All other frequencies either stayed the same or decreased. In all three examinations, the examiner noted normal ears and the Veteran reported that he had not had any ear problems and stated that he was in "good health." The recent examiner has noted that any threshold shifts noted in service are not significant. The Veteran, however, now claims that his hearing loss and tinnitus began in service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's DD-214 confirms that the Veteran's military occupational specialty was field artillery and the Board does not dispute that he was likely exposed to loud noises. However, in determining whether any in-service noise exposure affected the Veteran's hearing, the Board finds the objective test results and statements in the June 1966 separation examination to be most probative because audiometric testing is specifically designed to measure hearing loss and the Veteran's statements at separation were made in closer proximity to any hearing loss he may have experienced. Moreover, the 1990 records in association with other claims is negative for complaints or findings. Therefore, since the Veteran's recent assertions that his hearing loss began in service contradict not only the objective findings and the examiner's observations but also the Veteran's own lay statement at separation, the Board affords it little probative value. Moreover, the first medical record related to hearing loss or tinnitus appears about 37 years after leaving service, in a January 2003 VA medical record. Maxson v. West, 12 Vet. App. 453, 459 (1999). Additionally, in the March 2009 statement, the Veteran's sisters stated that they only began to notice the Veteran's hearing problems "a few years after he came home." Therefore, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's hearing loss onset in service or within one year of separation from service. In the February 2009 VA examination, the Veteran stated that his tinnitus began after service. The June 1966 separation examination is also negative for any complaints of tinnitus and the Veteran reported that he was in "good health." As the Veteran's February 2009 statement was made for purposes of medical treatment and is not inconsistent with the other evidence of record, the Board finds it credible and more probative than other assertions to the contrary. Rucker, 10 Vet. App. at 73. Therefore, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's tinnitus onset in service. Further, the Board finds that the Veteran's hearing loss and tinnitus are not related to active service. In the July 2011 VA examination, the examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service because the Veteran's separation examination revealed normal hearing bilaterally and because there were "no significant threshold shifts" when comparing the entrance and exit hearing examinations. In regard to tinnitus, the examiner opined that it was at least as likely as not associated with hearing loss because tinnitus is known to be a symptom associated with hearing loss. More significantly, the examiner opined that the Veteran's tinnitus was not caused by or a result of military noise exposure because the Veteran stated that it began after he left the military. Because the examiner reviewed the record in full, examined the Veteran and provided a fully-supported opinion, the Board finds the opinion to be adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The February 2009 VA examiner also opined that the Veteran's hearing loss was less likely as not related to his service because the separation examination revealed normal hearing. She opined that the Veteran's bilateral tinnitus was less likely as not due to active service because it was probably due to the same etiology as his hearing loss and because the Veteran had stated that it onset after service. Although in a previous decision the Board determined that the examiner's February 2009 opinion was inadequate, because it is consistent with the July 2011 VA opinion and the other evidence of record, here the Board finds it to be significant corroborating evidence of the July 2011 opinion. The Veteran's representative argued in the September 2013 informal hearing presentation that because the Veteran had in-service noise exposure and currently has hearing loss and tinnitus, there is sufficient evidence to grant service connection. He also argued that a denial cannot be based solely on a negative separation examination. The Board agrees that 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). Here, however, the weight of the evidence does not support a finding that the Veteran's hearing loss and tinnitus are causally related to service. The negative separation examination in conjunction with the gap of about 37 years between service and treatment, the statement by the Veteran's sisters that they did not notice his hearing problems until "a few years" after service, and the two negative VA opinions substantially outweigh the Veteran's in-service noise exposure and lay assertions that his hearing loss and tinnitus are causally related to service. The Board therefore finds that the Veteran's hearing loss and tinnitus are not causally related to his military service. The Veteran is also not entitled to service connection for hearing loss on a presumptive basis. Service connection for sensorineural hearing loss will rebuttably be presumed if it is manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service. Walker, 708 F.3d at 1338-40. As analyzed above, the Board finds that the Veteran's hearing loss did not begin in service or manifest to 10 percent within one year of separation. Given the gap of 37 years between separation from service and treatment, there is little evidence of continuity of symptomatology. Therefore the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs