Citation Nr: 1333785 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-25 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from March 1968 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability for VA purposes. 2. A left ear hearing loss disability and tinnitus are etiologically related to noise exposure during active service. CONCLUSIONS OF LAW 1. A right ear hearing loss disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. A left ear hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 3. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in June 2010 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The June 2010 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5.103(a) and 38 C.F.R. § 3.159(b), the Board concludes that the VA satisfied its duty to notify the Veteran. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, private treatment records are on file, and the Veteran has been afforded an appropriate VA examination. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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. Analysis The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that while serving in Vietnam from September 1968 to October 1969, he was exposed to loud noises and was not provided hearing protection. While the Veteran's DD Form 214 is not of record, a VA Request for Information confirms that he served in Vietnam and his Report of Medical Examination upon separation shows that his military occupational specialty (MOS) was Artillery Survey Specialist. The Board has found nothing in the record that contradicts the Veteran's contentions concerning his in-service noise exposure. Therefore, the Board finds that the Veteran's reports of noise exposure during active service are both competent and credible. As such, the Board concedes the Veteran's acoustic trauma during active service. A review of the Veteran's service treatment records (STRs) shows that at the time of his induction examination in November 1967, the Veteran was noted to have hearing mostly within normal limits based upon an audiometric evaluation. Reported puretone thresholds, in decibels, were: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 15 0 0 -- 25 LEFT 20 25 15 -- 25 In October 1969, the Veteran was afforded a separation examination that also included an audiometric evaluation. Reported puretone thresholds, in decibels, were: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 5 5 5 15 25 LEFT 10 15 15 15 25 The Board notes that the threshold for normal hearing is between 0 and 20 decibels, and a higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, based upon the audiometric evaluations, the Veteran did not have hearing loss disability for VA purposes at any point during his service. 38 C.F.R. § 3.385. Further review of the Veteran's STRs fails to show any complaints of symptoms of hearing loss or tinnitus at any time during his active service or at the time of his separation. However, in his May 2010 formal claim, the Veteran stated that his hearing loss had existed since November 1969, so right after he left active service. In his substantive appeal (VA Form 9), he stated that he always wore hearing protection while working after separation and while hunting, and the only place he did not wear hearing protection was while he was in Vietnam. During his October 2010 VA examination, the Veteran reported that his tinnitus had been present for years. The Board notes that the Veteran is competent to report when he first experienced symptoms of hearing loss and tinnitus and that they have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Here, the Veteran has stated that his hearing loss symptoms have existed since service and that he has had constant tinnitus for years. The Board finds that based on his assertions, the Veteran is credible in this regard. In October 2010, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported exposure to howitzers while in Vietnam. He also reported that in his post-service work he used hearing protection at times and he reported recreational noise exposure from hunting. He also complained of experiencing tinnitus constantly. Audiometric testing revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 20 15 15 25 25 LEFT 15 15 10 25 50 Maryland CNC speech recognition scores were 96 and 92 percent in the right and left ears, respectively. Based on the history provided by the Veteran and an examination of the Veteran, the examiner diagnosed hearing loss in the left ear only, as well as bilateral tinnitus. The examiner noted that the Veteran's tinnitus was as likely as not a symptom associated with the hearing loss. He opined that it was at least as likely as not that the Veteran's hearing loss in the left ear and tinnitus were not due to his military noise exposure history. In that regard, the examiner noted that the Veteran's entrance and separation audiograms were both within normal limits. In addition, the Veteran also had a private audiology examination in August 2010. At that time, the Veteran reported a long history of hearing loss and ringing in his ears since his service in Vietnam. He reported that after his service, he experienced some noise exposure while hunting on an occasional basis. Audiometric testing revealed that the hearing threshold levels in decibels were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 10 20 15 -- 30 LEFT 15 15 15 -- 55 Although it is unclear if the Maryland CNC tests was used, speech discrimination was reported as 100 percent bilaterally. Based on the history provided by the Veteran and an examination of the Veteran, the examiner diagnosed mostly normal hearing in the right ear and moderate focal hearing loss in the left ear. The examiner opined that there is no doubt that to some degree a portion of his left ear hearing loss could be attributed to his noise exposure while in Vietnam. The Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 vet. App. 614 (1992). In this regard, the Board notes that the October 2010 VA examiner's opinion is phrased in a confusing manner. He stated that it was at least as likely as not that the Veteran's hearing loss in the left ear and tinnitus were not due to his military noise exposure history. Based on this statement, it would follow that it was at least as likely as not that the Veteran's hearing loss in the left ear and tinnitus were due to his military noise exposure history. On the other hand, the October 2010 private examiner concluded that there is no doubt that to some degree a portion of the Veteran's left ear hearing loss could be attributed to his noise exposure while in Vietnam. The Board notes that 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006). 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. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran is competent to identify left ear hearing loss symptoms and tinnitus and his statements of such have been found credible. In sum, the Board has conceded the Veteran's exposure to hazardous noise while in active service. The Veteran has competently reported that he has experienced left ear hearing loss symptoms and tinnitus since active service and that he has continued to experience such since his separation from active service, and these statements have been found credible by the Board. There is no persuasive medical opinion of record indicating that the Veteran's currently diagnosed left ear hearing loss disability and tinnitus are not related to his noise exposure in active service. Accordingly, the Board finds that the evidence for and against the claims for left ear hearing loss disability and tinnitus is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for a left ear hearing loss disability and tinnitus is warranted. With regards to the Veteran's claim for a right ear hearing loss disability, the Board finds that the Veteran does not meet the VA regulations for a right ear hearing loss disability. A review of the STRs shows that the November 1967 induction examination and October 1969 separation examination noted defective hearing. However, hearing loss was not shown in accordance with VA standards at that time. See 38 C.F.R. § 3.385. The STRs are negative for any complaints of or treatment for hearing loss. Post service, there is no medical evidence of record showing that the Veteran currently has right ear hearing loss by VA standards. The August 2010 VA examination showed defective hearing in the right ear, but not to the level of hearing loss for VA standards. The same is true for the private audiometric evaluation from August 2010. Thus, there is simply no competent evidence of record showing that the Veteran currently has a right ear hearing loss disability in accordance with VA standards, as outlined in 38 C.F.R. § 3.385. Absent any current diagnosis of a right ear hearing loss disability in accordance with VA standards, an award of service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this determination, the Board does not question the sincerity of the Veteran's reports of difficulty hearing and acknowledges that, as a lay person, he is competent to report that he has difficulty hearing in his right ear. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). It is within the Veteran's realm of personal knowledge whether he has experienced difficulty hearing. Significantly, however, as a lay person, he is not professionally qualified to determine whether he has right ear hearing loss in accordance with VA standards, as such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). Accordingly, because the Veteran is not professionally qualified to determine whether he has right ear hearing loss in accordance with VA standards and there is no competent medical evidence of record showing that he suffers from a current right ear hearing loss disability in accordance with VA standards, service connection for this condition must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a right ear hearing loss disability is denied. Service connection for a left ear hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs