Citation Nr: 1333272 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-08 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corps reserve from May 1973 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in St. Louis, Missouri, which in part denied service connection for bilateral hearing loss and tinnitus. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. A bilateral hearing loss disability was not shown in service or within the first post-service year, and is not related to active service. 2. Tinnitus is not related to active service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013); 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in November 2011, prior to the March 2012 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. The Veteran was provided a VA examination in March 2012. The Veteran's representative has contended that during the examination it was plausible that the Veteran misunderstood questions asked or was reporting some additional ear symptoms regarding the onset of his disabilities. However, the report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate audiological evaluation, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. There is no reason to presume the examiner's medical report is not adequate. The examination report is reflective of the Veteran's medical history given that the examiner reported the Veteran's own lay statements that he did not start to experience symptoms until two years prior to the examination, which is supported by the fact that there are no VA or private treatment records for hearing loss or tinnitus for the entire period between service and the examination. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran declined to present testimony in support of his claims. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he has a hearing loss disability and tinnitus as a result of his military service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required 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 or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2013). For the 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2013). Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013); see also VA Under Secretary for Health letter dated October 4, 1995 (it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability). The record shows that the Veteran currently has a bilateral hearing loss disability for VA compensation purposes, and bilateral tinnitus, as noted in the March 2012 VA examination. Hickson element (1) is accordingly met for both claims. With respect to element (2), in-service disease or injury, the Board will separately discuss disease and injury. The service treatment records show that in June 1973 the Veteran was treated for left ear pain. An examination report showed that both of his ears were plugged with wax. The next day, an irrigation was completed and the examiner noted redness near the eardrum, but that the ears looked clean. The Veteran verified that he could hear well. The following day, the examiner cleaned the ears and retested his hearing; he noted that the Veteran's hearing had improved. In August 1973, the Veteran was treated for nasal congestion, clogged ears, headache, and cough. The report noted the left ear to be normal and the right to be irritated. On follow-up the next day the Veteran reported that his ears were sore, and that he had blood-like drainage for two months. The report noted dried blood in the right ear canal and the left ear was irritated. The tympanic membranes seemed within normal limits and the examiner ruled out serous otitis media. The Veteran was also diagnosed as having an upper respiratory infection in July 1974, during which he complained of pain in his ears at night. All audiological examinations conducted in service were within normal limits. Although there were notations of ear infections during service, review of the service treatment records, including the examination report at service discharge, does not reveal any diagnoses of hearing loss or tinnitus associated with any of the foregoing organic pathology or otherwise. There is also no evidence of hearing loss within the one year presumptive period after service. See 38 C.F.R. §§ 3.307, 3.309(a) (2013). Accordingly, Hickson element (2) is not met with respect to disease. Turning to in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service. In particular, he has cited to a history of noise exposure to high level noise as a machine gunner. In this regard, the Veteran is competent to give evidence about what he experienced, and acoustic trauma and tinnitus are subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). He is also credible with regard to these assertions. Therefore, the Board finds that the Veteran was exposed to hazardous noise during service and Hickson element (2) is satisfied. With respect to crucial Hickson element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current bilateral hearing loss and tinnitus, and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran was afforded a VA examination in March 2012, during which he stated that he experienced excessive noise while working in the military in the form of artillery, machine guns, and hand grenades. He stated that hearing protection was provided and worn most of the time. The Veteran denied a history of civilian occupation noise exposure while working in sanitation for 32 years, except for some unspecified noise during a 12 year job, and denied recreational noise exposure. He denied a medical history, family history, or ototoxic drug history of hearing loss. He attributed his hearing loss and tinnitus to his tenure in the military and first perceived problems about two years prior. The examiner found that it was not at least as likely as not that hearing loss or tinnitus was a result of acoustic trauma during service. In support of this conclusion, the examiner stated that the Veteran's hearing had been within normal limits in both ears while in the military, with no threshold shift. The examiner noted that the Veteran reported ear issues while in the military, but reasoned that it was a common ear infection which was treated with medication. The Veteran indicated he wore protection while being exposed to noise, which occurred about every other day for a total of two hours intermittently. The examiner also based his rationale on the fact that the Veteran reported that the onset of his hearing loss was two years before, well after military service. Additionally, the examiner also opined that tinnitus was less likely than not a symptom associated with hearing loss because the Veteran did not note any link or event between the hearing loss and tinnitus. The rationale was that the Veteran stated that the disabilities started about two years before, but was not sure of the exact time line or if they started together. The examiner also opined that it was less likely than not that the tinnitus was caused by or a result of military noise exposure because the Veteran's service treatment records documented no signs of acoustic trauma. Included in the rationale was the Veteran's report of onset two years before, well after military service. In April 2012 the Veteran also submitted a lay statement that while in service he was smacked from behind in the ear by a sergeant during the drill. He contends the force was so hard he felt pain, muffled hearing, and loud ringing in his ear for weeks. When he went to his sergeant to report the incident and requested to go to sick bay, the sergeant said "no" and asked him to tell him what "really happened." The sergeant then stated, "I'll tell you what happened, you forgot your earplugs at the rifle range." He was then given permission to see another sergeant to explain what happened. He contended that his medical records show he was seen as a result of this injury and blood was found in his ear, and that he returned a second time with no change. He stated he continues to have ringing in his ears that is getting louder and lasting longer. The Veteran and his representatives, however, have offered only conclusory statements regarding the relationship between his in-service noise exposure and his current disabilities to support these contentions, such as his statement that he was hit in the ear and heard ringing ever since. In contrast, the Board finds the VA examination report to be highly probative, because the VA examiner provided a detailed rationale in support of the opinions that hearing loss and tinnitus are not related to service, and cited to the relevant medical and lay evidence. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Furthermore, the opinions were obtained from a licensed medical professional rather than a lay person. There is no reason to presume the examiner's medical report is not competent or credible. The examination report is more reflective of the Veteran's medical history given that he reported the Veteran's own lay statements that he did not start to experience symptoms until two years prior to the examination, which is supported by the fact that there are no VA or private treatment records for hearing loss or tinnitus for the entire period between service and the examination. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). As such, the evidence weighs against a finding that the Veteran's current hearing loss disability and tinnitus are due to any event or injury in service. Here, while the Veteran is competent to describe his in-service noise exposure, infections, and injury, as well as his current symptoms, the Board accords the statements regarding the etiology of his disability little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). To the extent that the Veteran himself or his representative, contend that a medical relationship exists between his current disabilities and service, the Board again acknowledges that lay persons are competent to testify as to observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's current hearing loss and tinnitus, diagnosed many years after service, and any instance of his military service, to include noise exposure, or an ear infection or injury, to be complex in nature such that medical evidence of nexus is required. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, there is no dispute that the Veteran is competent to report events that occurred in service, and to describe symptoms of difficulty hearing and tinnitus because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[S]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. Furthermore, the Board has considered the multi-year gap between discharge from active duty service (1973) and initial documented evidence of disabilities in 2012, almost 40 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). Here, the Board finds that the Veteran's reported history as to the onset of his hearing loss and tinnitus, while competent, is nonetheless not credible. As detailed in the examination report, NOD, and VA Form 646, the Veteran's report of onset of his disabilities has varied widely, with the Veteran stating during his examination that the onset was two years before, but then stating in later submitted documents that that symptoms have been present since service. Because the Board finds that the variation in the Veteran's reported history as to the onset of his hearing loss is not credible, his statements will not be considered competent under the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). There is simply no evidence, other than arguments from the Veteran, to support the assertions that the Veteran had bilateral hearing loss and tinnitus since service. Based on the Veteran's varied reports of onset of his disabilities to the VA examiner and his reports in his NOD and VA Form 646, the Board finds the lay statements asserting continuity of symptomatology since service lack credibility and are without probative value. See e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, Hickson element (3), nexus, has not been satisfied, and the claims fail on this basis. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs