Citation Nr: 1333966 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-05 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Appellant served on active duty for training (ACDUTRA) from November 1964 to March 1965. Further, the record reflects he had additional service in the Reserves from February 1964 to February 1970, which would have included additional periods of ACDUTRA and inactive duty training. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, denied the current appellate claims. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding the Appellant has a current hearing loss disability as a result of his military service, to include periods of ACDUTRA and/or inactive duty training. 2. The preponderance of the competent medical and other evidence of record is against a finding the Appellant currently has tinnitus as a result of his military service, to include periods of ACDUTRA and/or inactive duty training. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hearing loss are not met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.385 (2013). 2. The criteria for a grant of service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the claimant 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice 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). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Appellant was sent pre-adjudication notice via a letter dated in June 2009, which is clearly prior to the August 2009 rating decision that is the subject of this appeal. This letter informed the Appellant, in pertinent part, of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. In view of the foregoing, the Board finds that the Appellant was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Board acknowledges that all of the Appellant's service treatment records are not on file, that all reasonable efforts to obtain such records through official sources appear to have been exhausted, and that a Formal Finding to this effect was made to the record in January 2013. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). Various other records were obtained and considered in conjunction with this case. Further, the Appellant has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding records relating the etiology of his hearing loss and/or tinnitus to military service. The Board further notes the Appellant was accorded a VA medical examination in April 2012 which included opinions that addressed the nature and etiology of his hearing loss and tinnitus. As these opinions were based upon both a medical evaluation of the Appellant, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the April 2012 VA examination, and the Appellant has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Appellant has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). 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 claimant 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 claimant'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 v. Nicholson, 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 claimant, and the claimant'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). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). According to 38 U.S.C.A. § 1153, a "preexisting injury or disease will be considered to have been aggravated by active . . . service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service; the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service; and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service and which includes organic diseases of the nervous system such as sensorineural hearing loss - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101, 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (Citing Paulson, 7 Vet. App. at 469-70, for the proposition that, 'if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.'). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. In this case the Appellant essentially contends that he developed hearing loss and tinnitus as a result of in-service noise exposure and has described the circumstances thereof. The Board acknowledges that the Appellant, as a lay person, is competent to describe such noise exposure, as well as hearing problems. However, as noted in the preceding paragraph, specific medical testing is required to determine whether one has a hearing loss disability as defined by VA regulations, and/or evidence of hearing loss pursuant to Hensley, supra. Moreover, such medical testing must be in accord with the requirements of 38 C.F.R. § 4.85(a) to be considered valid for VA purposes. Therefore, the Board finds that competent medical evidence is necessary to determine the nature and etiology of the Appellant's claimed hearing loss. Regarding the claimed tinnitus, the Board notes that, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). However, the Board also notes that there is no indication of this disability in the available service treatment records. More importantly, as noted in the April 2012 VA examination report, the Appellant reported that his tinnitus developed when he was age 50, or 16 years prior to this examination (which would make it around 1995 or 1996). In other words, he indicated that this disability first developed years after the end of his service in the Reserves in 1970. Consequently, the Board finds that competent medical evidence is also required to determine the etiology of the Appellant's tinnitus. Here, nothing on file shows that the Appellant has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board also notes that the Appellant's available service treatment records do not reflect he had evidence of either a hearing loss disability pursuant to 38 C.F.R. § 3.385 or evidence of hearing loss pursuant to Hensley, supra. For example, audiometric evaluation conducted as part of his February 1964 enlistment examination pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) -- -10 (-5) LEFT -10 (5) -10 (0) -10 (0) -- 5 (10) (NOTE: Prior to November 1967, audiometric results were usually reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Although neither standard was explicitly indicated by the in-service audiometric evaluations, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. In pertinent part, this conversion requires the following additions to audiological results: 15 at 500 Hertz; 10 at 1000 Hertz; 10 at 2000 Hertz; 10 at 3000 Hertz; 5 at 4000 Hertz; and 10 at 6000 Hertz.) Records noting the results of a November 1964 audiometric evaluation had the same results as those noted on the February 1964 enlistment examination. The audiometric results on a February 1965 separation examination indicated pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) -- 0 (10) LEFT 0 (15) 0 (10) 0 (10) 0 (10) -- 0 (10) The Board observes that the first competent medical evidence of a hearing loss disability as defined by 38 C.F.R. § 3.385 appear to be private audiograms dated in 2011. Although it is not clear whether these private evaluations were conducted pursuant to the requirements of 38 C.F.R. § 4.85(a), the subsequent April 2012 VA examination which was conducted pursuant to these requirements confirms a hearing loss disability for VA purposes as well as tinnitus. In any event, this indicates a hearing loss disability was first demonstrated many years after the end of the Appellant's service in the Reserves. As previously noted, the Appellant also indicated his tinnitus developed years after this service as well. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Moreover, as a hearing loss disability was first demonstrated many years after service, the Appellant would not be entitled to a grant of service connection on a presumptive basis even if the provisions of 38 C.F.R. §§ 3.307 and 3.309(a) were applicable to this case. The Board further notes that no competent medical opinion is of record which relates the etiology of the Appellant's hearing loss and/or tinnitus to his military service. Rather, the April 2012 VA examination contains opinions against such a finding. Specifically, the examiner opined that it was not at least as likely as not that the Appellant's hearing loss was caused by or a result of military service. In support of this opinion, the examiner noted that the results of the examination itself indicated a asymmetrical hearing loss and provided details thereof; that the in-service audiological evaluations from February 1964, November 1964, and February 1965 revealed hearing was within normal limits; and that due to this audiological evidence and history of post military noise exposure it was less likely as not that this Appellant's current hearing loss was caused by military noise exposure. Although the examiner did not specifically state whether the tinnitus was directed related to service, it was opined that the tinnitus was at least as likely as not a symptom associated with the hearing loss observing that it is a symptom known to be associated with hearing loss. 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. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a claimant for a long period of time or through a factually accurate medical history reported by a claimant. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the April 2012 VA examiner is presumed to be qualified to render a competent medical opinion. Further, the examiner was familiar with the Appellant's medical history from review of the VA claims folder, and the opinions expressed were not in speculative or equivocal language. Moreover, the examiner supported the opinions with reference to the in-service findings, the April 2012 examination findings themselves, and/or known medical principles. The Board also reiterates that there is no competent medical evidence which explicitly refutes the findings of the VA examiner regarding the etiology of these disabilities. In view of the foregoing, the Board finds that the April 2012 VA examiner's opinions are persuasive and entitled to significant probative value in resolution of this case. As detailed above, the examiner found the Appellant's current hearing loss was not etiologically related to his military service. Inasmuch as the examiner found that the tinnitus was secondary to the hearing loss, then service connection is only warranted for tinnitus if it has already been established for the hearing loss. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Appellant has a current hearing loss disability and/or tinnitus as a result of his military service, to include periods of ACDUTRA and/or inactive duty training. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs