Citation Nr: 1333583 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-06 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability, to include as secondary to tinnitus. 2. Entitlement to service connection for tinnitus, to include as secondary to a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In June 2012, the Board remanded the claims for further development. FINDINGS OF FACT 1. The preponderance of competent and credible evidence shows that chronic hearing loss for VA purposes in either ear was not demonstrated in service, that a chronic hearing loss for VA purposes in either ear was not compensably manifested within one year of separation from active service, and that there is no nexus between the current bilateral hearing loss for VA purposes and service, to include in-service noise exposure. 2. The preponderance of competent and credible evidence shows that tinnitus was not demonstrated in service, and that there is no nexus between the current tinnitus and service, to include in-service noise exposure. 3. The Veteran is not service connected for a bilateral hearing loss disability or tinnitus. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the 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 October 2008 and June 2012 of the information and evidence needed to substantiate and complete a claim of entitlement to service connection on a direct basis, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA provided notice of how disability evaluations and effective dates are assigned in October 2008. These claims were most recently readjudicated in a supplemental statement of the case issued in December 2012. The Board acknowledges that a May 2009 VA examiner stated that it was as likely as not that tinnitus was a symptom associated with the diagnosed hearing loss and that in September 2013 the Veteran's representative noted that the July 2012 VA examiner did not address the possibility of a relationship between tinnitus and hearing loss. Thus, the medical evidence and the representative have raised secondary service connection theories of entitlement for both disorders. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA's duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Although VA did not provide the Veteran any notice as a claim of entitlement to service connection on a secondary basis, he is not prejudiced by the lack of notice because, as discussed below, both claims are being denied on a direct basis and thus secondary service connection cannot be granted by law - that is, there is an absence of legal merit or a lack of entitlement under the law for a grant of service connection on a secondary basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, any error on the part of VA to inform the Veteran of the information and evidence necessary to establish service connection on a secondary basis is harmless. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims being adjudicated to the extent possible, and, as warranted by law, afforded a VA examination. The RO obtained the Veteran's service and VA treatment records, and afforded him VA examinations for his two disorders on appeal, to include pursuant to the Board remand. The Board remanded the claim in June 2012 because a May 2009 VA examiner did not consider the Veteran's competent lay statements regarding the onset of tinnitus and whether the tinnitus could have been caused by the conceded in-service noise exposure. In a September 2013 informal hearing presentation, the representative argued that the July 2012 VA examiner failed to comply with the directives of the remand because she did not address the concession of in-service acoustic trauma and because she did not address his lay assertions. However, the report of the July 2012 VA examination reflects that the examiner reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate physical examinations and interview, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Pursuant to the remand, the examiner specifically opined on whether the tinnitus is due to military noise exposure. Thus, the July 2012 VA examiner addressed whether the appellant's tinnitus is related to active service, to include the conceded noise exposure. Moreover, the examiner addressed the Veteran's current lay assertion regarding the onset of tinnitus, which even the representative noted that history from the examination report in a prior paragraph before challenging the adequacy of the post-remand examination report. Given that the Veteran has, as noted below, provided inconsistent information on the onset of his tinnitus, the examiner did not err in relying on his current reporting that he could not remember when the tinnitus began. The Board therefore concludes that the July 2012 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). Pursuant to the Board's prior remands, VA readjudicated the claims. In light of that and the discussion of the post-remand examination above, VA complied with the directives of the June 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). In short, there is no error or issue that precludes the Board from addressing the merits of this appeal. Claims for Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C.A. § 1110. 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). To establish a right to compensation for a present disability, 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). Certain chronic disabilities, such as a 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (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). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The VA audiological examination reports show that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The VA audiological examination reports also reflect diagnoses of tinnitus. Thus, the question is whether his current hearing loss and tinnitus are related to active service. See 38 C.F.R. § 3.303. The Veteran's DD-214 shows he was a weapons mechanic, and he reported his primary work area to be the flight line, which exposed him to jet engine noise. As determined in the June 2012 remand, in light of his military occupation, the Board finds the claimant's contentions with regard to in-service noise exposure are competent and credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting a Veteran is competent to testify as to his own observable symptomatology and in-service experiences). The Board has reviewed the service and VA treatment records and the VA examination reports. The preponderance of competent and credible evidence shows that chronic hearing loss in either ear for VA purposes was not demonstrated in service; that a chronic hearing loss for VA purposes in either ear was not compensably manifested within one year of separation from active service; and that there is no nexus between the current bilateral hearing loss for VA purposes and service, to include in-service noise exposure. The preponderance of competent and credible evidence shows that tinnitus was not demonstrated in service; and that there is no nexus between the current tinnitus and service, to include in-service noise exposure. Moreover, the Board finds the preponderance of the most probative and competent evidence shows that there is no continuity of decrease in the ability to hear and ringing in the ears symptomatology since separation from active duty. The Veteran's service treatment records show no hearing loss disability for VA purposes in service. His service treatment records show no complaints or findings of ringing in the ears or a diagnosis of tinnitus. Although there were elevated puretone thresholds at 500 and 1000 Hertz in the right ear at the separation examination, as explained below, the preponderance of competent and credible evidence shows that the elevated thresholds at 500 and 1000 Hertz in the right ear on separation were most likely inaccurate. The July 2012 VA examiner opined that it was not at least as likely as not that the Veteran's hearing loss was caused by or the result of an event in military service. The examiner noted a mild hearing loss being found at the May 1970 separation examination at 500 and 1000 Hertz in the right ear with all other frequencies in both ears being normal. The examiner stated that no other examinations after May 1970 verified the results found at 500 and 1000 Hertz in the right ear. In that regard, an August 2008 VA treatment record shows that puretone thresholds in the right ear from air and bone conduction testing were at worse 15 decibels and 10 decibels at 500 and 1000 Hertz, respectively. At the May 2009 VA examination, puretone thresholds in the right ear were 5 decibels and 10 decibels at 500 and 1000 Hertz, respectively. At the July 2012 VA examination, puretone thresholds in the right ear were 10 decibels at both 500 and 1000 Hertz. The examiner indicated that those findings led her to believe that the mild hearing loss displayed at those two frequencies in the right ear were most likely inaccurate. The examiner stated that had the appellant been reevaluated, it was likely that these frequencies would have been normal as they are currently and previously. Based on this evidence, the examiner opined that the Veteran's hearing loss was not caused by or related to military noise exposure. As for the tinnitus, the Veteran reported to the July 2012 VA examiner that he was unsure of the date and circumstances regarding the onset of the tinnitus. The examiner noted that there is no evidence in the service treatment records showing tinnitus being reported while in service. The examiner noted that the appellant reported that his tinnitus was much worse in the left ear, which was consistent with his history of cholesteatoma, surgery, and a tympanic membrane perforation. Based on this information, the examiner opined that the Veteran's tinnitus was not due to military noise exposure. In the September 2013 informal hearing presentation, the representative argued that the July 2012 VA examiner violated the holding of the United States Court of Appeals for Veterans Claims in Dalton v. Nicholson, 21 Vet. App. 23 (2007) by using a lack of findings in the service treatment records to render a negative opinion. In Dalton, the examiner had ignored the lay assertions that the claimant had sustained a back injury during service and the sole premise of the examiner's opinion was the lack of notation or treatment of a back injury in service. Dalton, 21 Vet. App. at 39. In this case, the examiner did not merely consider the service treatment records but also considered the Veteran's lay assertion of noise exposure, post-service medical evidence, and his lay assertion revealing his uncertainty about the onset of the tinnitus. Therefore, another medical opinion is not necessary pursuant to the holding in Dalton. As for continuity of symptomatology, the Board finds that he is competent to report symptomatology manifested by decrease in hearing ability and ringing in the ears but that he is not credible. The Veteran has inconsistently reported the beginning of his symptomatology. At the May 2009 VA examination, the appellant reported that his hearing loss and tinnitus began while he was overseas in service. His service personnel records show that he served in Thailand from January 1967 to January 1968, but that he was not discharged from service until July 1970. In other words, he asserted at the May 2009 VA examination that he had in-service symptomatology. In a February 2010 VA Form 9, however, the claimant reported that when he first came home from service he noted ringing in his ears and a decline in hearing. Finally, at the July 2012 VA examination, the Veteran could not remember the exact onset of his tinnitus. Based on the inconsistent reports of onset during the appeal period, the Board concludes that a continuity of symptomatology is not shown. As to the Veteran's claim that his bilateral hearing loss disability and tinnitus, regardless of when its symptomatology began, is related to active service, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of hearing loss and tinnitus, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Finally, service connection for a bilateral hearing loss disability secondary to tinnitus and service connection for tinnitus secondary to a bilateral hearing loss disability must be denied because the Board has denied direct service connection for both a bilateral hearing loss disability and tinnitus. As direct service connection is not warranted for either disability, there is no basis to award service connection on a secondary basis. The Board concludes that the preponderance of the evidence is against granting service connection for bilateral hearing loss disability and tinnitus. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a bilateral hearing loss disability, to include as secondary to tinnitus, is denied. Entitlement to service connection for tinnitus, to include as secondary to a bilateral hearing loss disability, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs