Citation Nr: 1333989	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  11-34 346	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel



INTRODUCTION

The Veteran served on active duty from June 1980 to June 1983.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the claims.  The record before the Board consists of a paper claims file and an electronic file known as Virtual VA.


FINDINGS OF FACT

1.  The Board concedes in-service injury in the form of the Veteran's exposure to acoustic trauma.  

2.  There is no evidence of continuous symptoms of tinnitus since service, and no probative evidence establishing that the Veteran's tinnitus is the result of injury during active duty service.  

3.  There is no evidence of bilateral hearing loss under 38 C.F.R. § 3.385 in the year following the Veteran's discharge from service, and no probative evidence establishing that the Veteran's bilateral hearing loss is the result of injury during active duty service.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Board finds that VA's duty to notify was satisfied by a letter sent to the Veteran in August 2009, which addressed all of the notice elements and was sent prior to the initial unfavorable decision by the agency of original jurisdiction in January 2010.  

VA's duty to assist was also met in this case.  The service treatment records are in the claims file.  All pertinent VA treatment records have been obtained and associated with the file.  A VA audio examination with respect to the issues on appeal was obtained in January 2010.  38 C.F.R. § 3.159(c) (4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a full reading of the service and post-service medical records in the Veteran's claims file.  It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c) (4).  

Based on the foregoing, all known and available records relevant to the issues on appeal have been obtained and associated with the claims file; and the appellant has not contended otherwise.  The record does not suggest the existence of additional, pertinent evidence that has not been obtained.  For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the appellant.

Service connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  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 was incurred in service.  38 C.F.R. § 3.303(d).  

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system.  See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)).  

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker, 708 F.3d at 1335 (Fed. Cir. 2013), or in the presumptive period 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).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker, 708 F.3d at 1336 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Id. 

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired 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, 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service.  See Hensley, 5 Vet. App. at 159.  When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service.  Id. at 160.

In rendering a decision on appeal, 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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

The Veteran seeks service connection for tinnitus and bilateral hearing loss, which he contends are the result of in-service exposure to loud explosions from artillery gunfire.  He asserts three continuous years of exposure to this type of acoustic trauma has resulted in his current problems hearing and continuous ringing of his ears.  See VA Form 21-526 received August 2009; February 2010 VA Form 21-4138; December 2011 VA Form 9.  

Service treatment records are devoid of reference to complaint of, or treatment for, any problems with ringing in the ears or problems hearing, to include any decrease in hearing acuity.  At the time of a separation examination, the Veteran denied ear, nose, or throat trouble and hearing loss, and clinical evaluation of his ears and drums was normal.  See May 1983 reports of medical examination and history.  

Post-service treatment records, which are comprised entirely of VA records, reveal treatment for subjective tinnitus and decreased hearing.  
The Veteran underwent a VA audio examination in January 2010, at which time his claims folder and medical records were reviewed.  His chief complaints were hearing loss and tinnitus.  The Veteran reported in-service field artillery exposure for three years and indicated that after service, he worked as a janitor, cook, and fork lift driver.  His current employment was detailing cars.  The Veteran reported exposure to gunfire and artillery while in military service and denied any significant noise exposure in civilian life.  He reported some history of ear infections in the left ear, but denied ever been treated for them by a physician.  He also denied ear surgery, familial hearing loss, and exposure to nuclear radiation.  He did suffer a closed head trauma from a bicycle accident during military service and also reported occasional dizziness where he feels lightheaded and a spinning sensation, which mainly comes on with head movement.  The Veteran also reported bilateral tinnitus, which he reported noticing for at least the past 10 years.  

On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
30
30
LEFT
20
15
15
35
35

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 88 percent in the left ear.  Middle ear function was normal and consistent with type and degree of hearing loss.  Mild sensorineural hearing loss 3000-4000 Hz was noted in both ears.  The diagnosis was bilateral sensorineural hearing loss.  It was the examiner's opinion that the Veteran's hearing loss and tinnitus were less likely as not caused by or a result of military noise exposure.  The rationale in support of the opinion was that review of the Veteran's service treatment records revealed no significant threshold shift when comparing audiometric thresholds obtained on enlistment physical to those obtained on separation physical.  The examiner also noted that the Veteran's hearing was normal on separation physical and that the date of onset of tinnitus as reported by the Veteran did not correlate to dates of military service, since the Veteran reported noticing current tinnitus 20 years after service.

The preponderance of the evidence of record does not support the claims for service connection for tinnitus or bilateral hearing loss.  Although the Veteran's service treatment records do not document he was seen with complaints of decreased hearing or ringing in his ears during service, the Board concedes that an in-service injury in the form of exposure to acoustic trauma occurred during service based on the Veteran's competent and credible reports of being exposed to artillery gunfire for his three years of active duty service and based on the fact that his DD Form 214 lists the Veteran's military occupation specialty as cannon crewman.  In light of this concession, the Veteran has one of the elements needed to establish service connection, namely an in-service injury.  He also has another element needed to establish service connection as he meets the criteria under 38 C.F.R. § 3.385 for bilateral hearing loss per VA standards and he has competently reported bilateral tinnitus.  See Charles v. Principi, 16 Vet. App 370, 374 (2002); Barr, 21 Vet. App. at 309.

The Veteran has not, however, reported continuous symptoms of either tinnitus or bilateral hearing loss since service.  Rather, at the time of his 2010 VA examination he reported noticing tinnitus for at least the past 10 years, which would place the onset sometime around the year 2000, approximately 17 years after the Veteran's discharge from active duty service.  In addition to the absence of evidence of continuity of symptomatology for either disorder since service, there is also no probative medical evidence establishing that either tinnitus or bilateral hearing loss are the result of the conceded in-service noise exposure.  In fact, the only probative opinion in this case is that provided by the January 2010 VA examiner, who explained that the date of onset of tinnitus did not correlate to dates of military service and that the Veteran's hearing was normal on separation physical without evidence of a significant threshold shift between entry and discharge audiograms in support of the opinion that it was less likely as not that either disorder was the result of military noise exposure.  

The Board acknowledges the Veteran's statement that his in-service noise exposure is the cause of his current hearing loss and ringing in his ears.  As a lay person without the appropriate medical training and expertise, however, he simply is not competent to provide a probative opinion that either condition is related to the in-service noise exposure.  See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  

In this regard, 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) (lay witness capable of diagnosing dislocated shoulder).  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 Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).

Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, hearing loss is not a condition that can be causally related to military service without medical expertise.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372.  This is so because it requires specialized testing, usually by audiogram, to determine diagnosis, and it requires an individual with training and expertise in the likely or known causes of the disease to determine etiology in an individual case. 

In the absence of evidence of bilateral sensorineural hearing loss in the year after the Veteran's June 1983 discharge from active service, service connection is not warranted on a presumptive basis.  It is also not warranted on a direct basis for either bilateral hearing loss or tinnitus in the absence of a probative opinion establishing that either was the result of the in-service noise exposure.  For these reasons, the claims for service connection for bilateral hearing loss and tinnitus are denied.  38 C.F.R. §§ 3.303, 3.307, 3.309.  

As the preponderance of the evidence is against the claims, the statutory provisions regarding resolution of reasonable doubt are not applicable.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for tinnitus is denied.

Service connection for bilateral hearing loss is denied.  



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs