Citation Nr: 1333970 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-50 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California 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. ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction was subsequently transferred to the RO in Los Angeles, California. The issue of service connection for bilateral hearing loss has been bifurcated to service connection for a right ear hearing loss disability and service connection for a left ear hearing loss disability, as noted on the title page, to comport with the evidence of record. The Board notes that VA is free to dismember a claim and adjudicate it in separate pieces. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). 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. The issues of a left ear hearing loss disability and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A right ear hearing loss disability did not manifest in service and an organic disease of the nervous system did not manifest within one year of separation. 2. A right ear hearing loss disability is unrelated to service. CONCLUSION OF LAW A right ear hearing loss disability was not incurred in or aggravated by active military service, nor may an organic disease of the nervous system be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in a February 2009 letter, prior to the initial adjudication of the claim in August 2009. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and post-service private treatment records have been obtained. The Veteran indicated in his December 2008 claim that he sought treatment from Dr. T on several occasions with his most recent evaluation in June 2003. The only treatment record from Dr. T of record is the June 2003 evaluation. VA requested any additional treatment records from the Veteran in a February 2009 VCAA notice letter. The Veteran submitted a written statement in March 2009 in which he stated he has no additional medical records pertaining to his hearing loss. The Board, therefore, finds that it has obtained all pertinent post-service treatment records. The Veteran's written statements are also of record. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded an appropriate VA examination in connection with his claim. The Board finds that the examination was adequate, in that the exam was conducted by a medical professional who reviewed the claims file, solicited history from the Veteran, and performed a thorough examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. 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. 38 C.F.R. § 3.385. The Court of Appeals for Veterans Claims has endorsed VA's interpretation of the law which indicates 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), citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988). 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. Analysis The Veteran is seeking service connection for a right ear hearing loss disability which he contends is due to in-service acoustic trauma. Having carefully considered his claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against his claim. As an initial matter, the Veteran served in the Republic of Vietnam from November 1968 to November 1969. However, the Veteran is not alleging that he engaged in combat or that his disability is a result of combat, but rather that his disability is the result of exposure to flight line noise with no assertion of incurrence or aggravation during combat. As a result, the combat presumption is not for application in this case. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). The Board notes that the Veteran's contentions of in-service noise exposure are deemed consistent with the circumstances of his service, including his military occupation specialty (MOS) as an aircraft maintenance specialist, reflected on his DD-214. As such, the Board acknowledges that the Veteran had in-service noise exposure. See 38 U.S.C.A. § 1154(a). Audiological findings of record, to include findings from a May 2009 VA audiological examination, show that the Veteran currently meets the regulatory hearing thresholds for a hearing loss disability in his right ear. 38 C.F.R. § 3.385. Thus, this matter turns on the nexus question, i.e., evidence of a nexus between the claimed in-service disease or injury and the current disability. A review the Veteran's service treatment records show no in-service complaints, treatments, or diagnoses for hearing loss in the right ear. Upon enlistment in December 1964, a clinical evaluation revealed normal ears and the Veteran's audiology examination revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (5) The Board notes that, prior to November 1967, in-service audiometric examination findings were generally reported in standards set forth by the American Standards Association (ASA). That is the figure on the left and is not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standard has been converted to ISO-ANSI standards and is represented by the figure in parentheses. In an October 1965 report of medical history the Veteran denied any ear, nose, or throat trouble and denied having running ears. Upon clinical evaluation at separation in October 1969, the Veteran's ears were "normal" and the audiology examination revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 5 10 15 10 20 LEFT 10 5 5 25 15 15 Although the Veteran's audiological findings show evidence of hearing loss not rising to the level of a hearing loss disability for VA purposes at 3000 Hz in the left ear, the findings show normal hearing in the Veteran's right ear upon separation. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). At that time, the Veteran again denied having ear, nose, or throat trouble or having running ears. The Veteran's post-service private treatment records reveal he had an audiological evaluation in June 2003 by Dr. B.L. The audiometric findings show the Veteran has a bilateral hearing loss disability and the puretone thresholds are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 35 65 LEFT 0 5 15 55 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear. The Veteran reported an occasional congested feeling and tinnitus. He further reported difficulty understanding speech when he is around noise. The Veteran was afforded a VA audiology examination in May 2009. He complained of hearing loss and tinnitus. He reported in-service noise exposure on the flight lines while inspecting and tuning aircraft engines. The Veteran noted he wore hearing protection while in service. He further reported no post-service noise exposure either at work or recreationally. After separation, he worked in sales and as a manufacturer representative. Upon audiological examination, the measured puretone thresholds revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 65 60 LEFT 10 20 35 65 70 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear. The examiner reported the Veteran had bilateral sensorineural hearing loss and tinnitus for purposes of a VA hearing loss disability. See 38 C.F.R. § 3.385. The examiner reported that the type, degree, and configuration of the Veteran's hearing loss may be secondary to noise exposure and/or aging factors. The examiner, however, opined that because the Veteran had normal hearing upon discharge and no evidence of hearing loss within one year of separation from service, the Veteran's hearing loss is less likely than likely related to his in-service noise exposure. The examiner also noted that the Veteran's tinnitus is most likely due to the same causative factors as his hearing loss. The Board notes that while the medical opinion is inadequate in regard to the Veteran's left ear hearing loss disability and tinnitus, as described in further detail below, it is adequate in regard to the Veteran's right ear hearing loss disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Overall, this medical opinion was thorough, supported by an explanation, based on a review of the claims file, and supported by the Veteran's medical records. There is also no contrary medical evidence. The Board thus finds that this negative medical opinion is entitled to great probative weight against the claim. The Board acknowledges the Veteran is competent to report as to the observable symptoms he experienced, such as an onset of his symptoms of hearing loss in his right ear. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, competence must be distinguished from probative weight. The question of whether the Veteran's current hearing loss disability in his right ear is related to his in-service noise exposure is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n.4 ("sometimes 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"). Thus, to the extent the Veteran asserted that his current right ear hearing loss disability is caused by his in-service noise exposure, his testimony is in conflict with the overall findings in the service treatment records and the VA examination report, and there is no other competent evidence to support such a finding. The substantial gap in time between the Veteran's separation from service and the initial diagnosis of a right ear hearing loss disability in June 2003 weighs heavily against the Veteran's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). In making this determination, the Board acknowledges the lay assertions made by the Veteran in his Claim, Notice of Disagreement, and Form 9 regarding continuous right ear hearing loss since his active service. However, neither the right ear hearing loss nor the right ear hearing loss disability were identified during service or within one year of separation. In addition, his report of in-service onset is inconsistent with the service treatment records and is less credible than the contemporaneous records. As such, the Veteran's reported history is of limited probative value as to the May 2009 VA examination report. As the negative VA opinion on the question of nexus carries the most probative weight of all of the opinions for consideration, the preponderance of the evidence weighs against a finding that the Veteran's right ear hearing loss is related to the Veteran's in-service noise exposure. Because the Veteran has sensorineural hearing loss, he has an organic disease of the nervous system. Therefore, 38 C.F.R. § 3.303(b) is potentially applicable. However, right ear hearing loss was not "noted," identified or diagnosed during service. Furthermore, since the in-service audiometric findings were normal, he did not have characteristic manifestations sufficient to identify the disease entity. Therefore, 38 C.F.R. § 3.303(b) does not support the claim. Upon review, the Board finds the evidence against the claim to be more probative than the evidence in favor of the claim. Therefore, the Veteran's claims for service connection for a right ear hearing loss disability must be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine in not applicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet.App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for a right ear hearing loss disability is denied. REMAND The Veteran contends that his current left ear hearing loss disability and his current tinnitus are the result of his in-service noise exposure, to include when he was working on aircrafts on flight lines. In order to resolve this question, the Veteran was afforded a VA audiological examination in May 2009. The examiner opined that the Veteran's tinnitus and left ear hearing loss disability were not caused by or a result of acoustic trauma in the military. The examiner noted that the Veteran's hearing was assessed by valid measurements at enlistment and discharge and these examinations identified normal hearing across the frequency range of 500 Hz through 6000 Hz. The Board finds that the VA examination is not adequate. The examiner concluded that the Veteran's October 1969 separation examination showed normal hearing. However, thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran's audiological examination upon separation reveals the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 15 10 LEFT 10 5 5 25 15 Thus, a medical opinion is needed, either by way of an addendum opinion or new examination that addresses the etiology of the Veteran's current left ear hearing loss disability and tinnitus in light of the separation examination that shows evidence of left ear hearing loss at 3000 Hz. The Board notes that the examiner opined that the Veteran's tinnitus is most likely due to the same causative factors as his hearing loss. Accordingly, the case is REMANDED for the following action: 1. The RO should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any left ear hearing loss disability and tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, specifically the Veteran's October 1969 separation examination that shows some evidence of hearing loss in his left ear at 3000 Hz, lay statements, as well as a copy of this remand. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current left ear hearing loss and tinnitus are causally or etiologically related to in-service noise exposure, or if the left ear hearing loss disability became manifest to a compensable degree within one year of separation from active service (i.e., November 1970). In so doing, the examiner must discuss the likelihood that the Veteran's left ear hearing loss disability and tinnitus are due to in-service noise exposure on a delayed or latent onset theory of causation. The examiner must provide reasons for each opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner is unable to complete the addendum without conducting a new examination, then a new examination should be scheduled. All appropriate tests and studies (to include audiometric testing) should be accomplished, and all clinical findings should be reported in detail. 2. After ensuring that the requested actions are completed, the RO should readjudicate the claims on appeal. If the benefits sought are not fully granted, the RO must furnish a supplemental statement of the case, before the claims file is returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs