Citation Nr: 1333523	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  13-07 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 





INTRODUCTION

The Veteran served on active duty from May 1946 to November 1946, and from February 1955 to February 1961.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  

The Board notes that on his February 2013 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a hearing before the Board via video conference.  However, the Veteran withdrew this hearing request in a statement received in July 2013.  38 C.F.R. § 20.704(d) (2013).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Bilateral sensorineural hearing loss did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service.

2.  Tinnitus did not become manifest during service and is not etiologically related to service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was not incurred in or aggravated by active service and sensorineural bilateral hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).

2.  Tinnitus was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2013).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, a letter dated in June 2010 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal.  The case was last readjudicated in December 2012.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, and VA treatment records.  The Veteran was also provided a VA compensation examination in July 2010 which included an opinion concerning the nature and etiology of his bilateral hearing loss and tinnitus.  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument.  Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so, and the Board may proceed with a decision.  

II.  Service Connection Claims

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 

The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  Hensley, 5 Vet. App. 155, 159.

Regarding the claim for tinnitus, it is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007).  And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis.  Charles v. Principi, 16 Vet. App. 370 (2002).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis.


Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In the instant case, the Veteran seeks service connection for a bilateral hearing loss disability and tinnitus.  The Veteran contends that he currently has hearing loss and tinnitus as a result of military noise exposure from 155 howitzers and tank noise.  

The Veteran's service treatment records are completely silent regarding any complaints, treatment or diagnoses of hearing problems, including a decrease in hearing acuity or tinnitus symptoms.  In fact, he was given several whisper voice examinations that all revealed scores of 15/ 15, which is considered normal.  

Following service, a March 2010 VA treatment record showed the Veteran was treated for a left ear infection in October 2009.  He received antibiotics to treat this infection.  The treating physician determined the Veteran developed left ear tinnitus and decreased hearing in the left ear.  The treating physician noted there was no prior hearing loss, ear infections, surgeries, injuries, dizziness, or vertigo.  Nevertheless, a diagnosis of hearing loss and tinnitus was provided.  An April 2010 record notes that the Veteran had sudden onset left ear hearing loss and constant left ear tinnitus.  The Veteran also reported military noise exposure.  In May 2010, he was fitted for hearing aids.  

In July 2010, the Veteran was scheduled for a VA audiological examination.  At that time, the examiner confirmed diagnoses of bilateral sensorineural hearing loss pursuant to 38 C.F.R. § 3.385, and bilateral tinnitus.  The Veteran reported that he was exposed to military noise exposure from 155 howitzers and tank noise.  He denied any history of ear infections, ear surgeries, dizziness, or balance problems.  He also denied post-service hazardous noise exposure with civilian employment, hobbies, or recreational activities.  The examiner ultimately concluded that it is less likely as not that bilateral hearing loss is due to the Veteran's military service and more likely due to presbycusis and/ or some other etiology.  As rationale for his unfavorable opinion regarding hearing loss, the examiner stated that individuals that are exposed to high levels of noise typically present with a hearing loss in the higher frequencies.  The examiner stated that although the Veteran reported a history of hazardous noise, the examination revealed a gradually sloping mild to moderately-severe loss in the right ear and a moderate to moderately-severe loss in the left ear, 50 years after service.  

Concerning the Veteran's tinnitus, the examiner stated that the Veteran reported the onset of tinnitus approximately one year ago and no reports of tinnitus were found in the claims file.  Therefore, the examiner again concluded that it is less likely as not that the hearing loss is due to the Veteran's military service and more likely due to presbycusis and/ or some other etiology.  

Based on the foregoing, the Board concludes that the evidence is against the service connection claims.  The July 2010 VA examiner found the Veteran's hearing loss and tinnitus were not related to service but instead to presbycusis and/or some other etiology.  This examiner conducted a comprehensive clinical examination and evidentiary review, and indicated familiarity with the Veteran's pertinent medical and lay history.  The examiner provided a rationale regarding the Veteran's current condition and offered an adverse opinion regarding the relationship between the Veteran's active duty service and the results of the examination.  There are no conflicting opinions.  
Further, there is no competent medical evidence of record reflecting that the Veteran demonstrated bilateral hearing loss to a compensable degree within one year of discharge from active duty, and the VA examiner's opinion also weighs against this finding.  Otherwise, there is no medical evidence of record indicating that the Veteran's bilateral hearing loss and tinnitus were caused or aggravated by his active duty service.  Accordingly, entitlement to direct service connection under 38 C.F.R. § 3.304 for both conditions or to presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.309(a) is not shown. 

The Veteran and his daughter have both asserted their personal beliefs that the Veteran has hearing loss and tinnitus due to noise exposure in service.  The Veteran is competent to report noise exposure in service, and both he and his daughter are competent to report difficulty hearing since, but they are not competent as laypersons to opine regarding the etiology of hearing disability that demonstrably became manifest many years after service.  Kahana, 24 Vet. App. 428.  

In sum, the Board has found the Veteran does not have bilateral hearing loss or tinnitus that is incurred in, due to or aggravated by service.  Accordingly, the criteria for service connection are not met and the claims must be denied.

Because the preponderance of the evidence is against the claims the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.  


____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs