Citation Nr: 1334018 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-08 367 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Hearing loss was noted in both ears by audiometric testing at the Veteran's enlistment physical. 2. The Veteran failed to show that his hearing loss was aggravated in either ear during service. 3. The evidence fails to establish that it is at least as likely as not (50 percent or greater) that the Veteran's currently diagnosed tinnitus either began during or was otherwise caused by his military service, to include as a result of any noise exposure therein. CONCLUSIONS OF LAW 1. Hearing loss was not aggravated in either ear by service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385 (2013). 2. Criteria for service connection for tinnitus have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Bilateral hearing loss In this case, the Veteran is seeking service connection for bilateral hearing loss which he contends is the result of military noise exposure. A veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Here, the Board finds that the condition of bilateral hearing loss was noted upon entry into service, as audiometric testing conducted at enlistment showed hearing loss in both ears. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. For ISO conversion, the Board added (+15) (+10) (+10) (+10) (+5) to the puretone thresholds at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Audiometric testing was conducted at the Veteran's enlistment physical in May 1966 (converted to ANSI standards) revealed (pure tone thresholds recorded in decibels): Hertz 250 500 1000 2000 3000 4000 Right ----- 30 15 15 ---- 10 Left ----- 40 25 25 ---- 10 For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the 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 (Court) has explained further that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Turning to the evidence of record in this case, the audiometric testing at the Veteran's enlistment physical clearly shows a hearing loss disability for VA purposes in his left ear as he demonstrated a decibel loss of 40 at 500 HZ. Additionally, the Veteran showed decreased hearing acuity in his right ear per Hensley as he demonstrated a decibel loss of 30 at 500 HZ. As explained, a veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. Importantly, 38 C.F.R. § 3.304(b) does not limit the presumption of soundness to disabilities for VA purposes, but rather precludes it where defects, infirmities, or disorders are noted. No further explanation or definition is provided for "defects, infirmities, or disorders". Here, the audiometric testing that was conducted at enlistment did not show sufficient decibel loss in the Veteran's right ear to be considered a hearing loss disability for VA purposes, but it clearly established defective or diminished hearing acuity, which reached the level of hearing loss per Hensley. In the Board's opinion, the showing of hearing loss, even if not for VA purposes, is sufficient to constitute a defect. See 3.304(b). Accordingly, the Board concludes that defective hearing was noted in both ears at enlistment, and therefore the presumption of soundness is not applicable. When a defect is noted at enlistment, the presumption of aggravation of 38 U.S.C.A. § 1153 and the regulation implementing the statutory provision, 38 C.F.R. § 3.306, apply. In such a case, the burden falls on the Veteran to establish aggravation. Horn v. Shinseki, 25 Vet. App. 231, 235, Footnote 6 (2012). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden would then shift to VA to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In this case, the Veteran has not shown that his hearing acuity was aggravated by service. This is not to say that the Veteran did not have military noise exposure, as he clearly did. His DD-214 lists his MOS as "blaster" and he served as a combat engineer. The Veteran also reported in his notice of disagreement that during service he operated dump trucks and road graders to assist in the construction of roads and bridges. As such, the Board will concede his in-service noise exposure. 38 U.S.C.A. § 1154(a). However, a current hearing disability and military noise exposure alone is insufficient to warrant service connection. Rather, it must generally be shown that the noise exposure actually caused the hearing loss, or in this case that the noise exposure aggravated the pre-existing hearing loss. Additionally, temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). Finally, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). In this case, the evidence simply does not show that the Veteran's hearing loss was aggravated in either ear during his time in service. At the Veteran's separation physical in July 1968, audiometric testing showed the following, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 LEFT 0 0 0 0 As such, no hearing loss was shown at the Veteran's separation physical. The Veteran also specifically denied any hearing loss on a medical history survey completed in conjunction with his separation physical. Moreover, while he denied having ever experienced any hearing loss, the Veteran did acknowledge a past history of several medical conditions, including mumps and skin disease. This would suggest that the Veteran gave more than just a cursory review to the document, adding weight to his denial of experiencing any hearing loss. Finally, a review of the service treatment records does not reveal any complaints of, or treatment for, any diminished hearing acuity during service. As noted, the regulations dictate that aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Here, the Veteran has not provided any evidence that his pre-existing hearing loss worsened during his military service; and the evidence of record, such as the audiometric testing showing normal hearing bilaterally at separation, directly refutes such a suggestion. In his claim that was received in 2010, more than 40 years after he separated from service, the Veteran indicated that his hearing loss disability had begun in 1968, but he denied ever receiving any treatment for it, and he provided no additional information for why he associated the onset with 1968. Similarly, at a VA examination in June 2010, the Veteran also failed to provide any additional information about the onset of his hearing loss, beyond his opinion that it was caused by military noise exposure. As a lay person, the Veteran is competent to report what comes to him through his senses, such as perceiving diminished hearing acuity. See Layno v. Brown, 6 Vet. App. 465 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As described above, the Veteran's assertion that his hearing loss began in 1968 is directly refuted by the audiometric testing that was administered as part of both his enlistment physical and his separation physical. Given this conflict, the Veteran's assertion is given no weight. As described, the evidence of record simply does not show that the Veteran's hearing loss, which existed prior to service, was aggravated by his military service, and therefore service connection is denied. Tinnitus The Veteran is also seeking service connection for tinnitus, which he also believes is the result of his military noise exposure. Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence of record is very limited with regard to this issue. The Veteran filed a claim for service connection for tinnitus in January 2010, more than 40 years after separating from service. In the claim, he indicated that his tinnitus had begun in 1968, reported military noise exposure, and denied having received any treatment for it. Service treatment records were obtained which failed to show any complaints of, or treatment for, symptoms which might now be associated with a diagnosis of tinnitus. Moreover, audiometric testing showed hearing within normal limits at separation, the Veteran specifically denied any problems with his ears on a medical history survey completed in conjunction with his separation physical, and the Veteran's separation physical found his ears to be normal. As noted above, the Veteran's military noise exposure has been conceded, and tinnitus was diagnosed at his VA examination in 2010. However, a current diagnosis of tinnitus and military noise exposure alone is insufficient to warrant service connection. Rather, it must be shown that the noise exposure actually caused the tinnitus. The Veteran's representative argues that the Veteran is competent to report the symptoms of tinnitus. The Board agrees, as the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Generally, lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, 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. However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran indicated in his claim that his tinnitus began in 1968, but he provided no details as to why he felt this way, such as by describing the symptoms he was allegedly experiencing or their frequency or severity. At his VA examination, the Veteran reported that his tinnitus had onset in 1968 in conjunction with artillery. However, following an examination with the Veteran in June 2010, the VA examiner was clearly not persuaded that the Veteran had begun experiencing tinnitus during service, as he concluded that it was less likely than not that the Veteran's tinnitus was caused by his military service. While the Veteran now, 40 plus years after separating from service, has begun reporting that his tinnitus onset in 1968 while in service, a review of the Veteran's service treatment records suggests otherwise. As noted, the Veteran did not seek any treatment for tinnitus during service, or voice any complaints of symptoms which might now be regarded as the onset of tinnitus. Most tellingly, the Veteran specifically denied any ear problems on a medical history survey completed in conjunction with his separation physical. If the Veteran had generically denied all medical conditions at on this survey, his denial of ear problems might be overlooked. However, in this case, while denying any history of ear problems, the Veteran specifically acknowledged having had mumps, skin diseases, and boils. The Veteran also initially reported having had tumor/growth/cyst/cancer, but then crossed it out. As such, it is clear that the Veteran spent time considering each of the conditions listed on the survey. Had the Veteran actually been experiencing tinnitus at that time, as he now apparently contends, it logically would have made sense that he would have reported ear problems, but he simply did not. As such, the evidence generated contemporaneously with service, namely the service treatment records, does not show any tinnitus. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Conversely, the only evidence of tinnitus that is of record was presented in conjunction with a claim for monetary benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). The Veteran was offered the opportunity to testify at a hearing before the Board, at which time he could have explained when he first experienced symptoms of tinnitus and their progression, but he, as was certainly his right to do so, declined. Unfortunately, he also failed to provide any statement about the etiology of this tinnitus beyond it began in 1968 with artillery to describe his alleged past 40 year experience with tinnitus. While the Veteran is not in any way required to submit such information, his failure to do so results in his few cursory statements lacking the supporting detail that could add weight and credibility to them. As it stands, the Veteran's service treatment records fail to describe any tinnitus like symptoms, and he has denied seeking any treatment for tinnitus in the 40 years since separating from service. Given the natural conflict with the evidence generated contemporaneously with service, the Board finds the Veteran's current statements to be less probative. As such, the Veteran's statements alone are found to be insufficiently credible to link his tinnitus to his military noise exposure. The Veteran was provided with a VA examination to assess the etiology of his tinnitus, but the examiner concluded that it was less likely than not that the Veteran's tinnitus was the result of his military service. This opinion reinforces the Board's conclusion above, as the examiner was in the best position to assess the Veteran's contentions, as he met with the Veteran and reviewed his claims file. The examiner acknowledged the Veteran's noise exposure in the military, but concluded that such exposure had not caused any diminished hearing acuity. This opinion has not been contradicted by any medical professional and it is found to be highly probative. As such, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in February 2010, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records were obtained and the Veteran denied having received any treatment for either hearing loss or tinnitus in his application form. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination in June 2010 (the report of which has been associated with the claims file). In several statements, the Veteran's representative has argued that the examiner's opinion was inadequate and that a remand was therefore necessitated. The Board acknowledges that where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However, the Board disagrees with the representative's suggestions that the examination is inadequate and that remand is necessitated. The representative argued that when a separation physical shows normal hearing, the proper inquiry is whether or not any current hearing disability can be related to in-service noise exposure, not whether it was demonstrated in service, citing to Hensley v. Brown, 5 Vet. App. 155, 164 (1993). The Board does not disagree with such an assertion in principle. However, what is important to note about the citation to Hensley is that in that case, there was not just normal hearing found at separation, but the audiometric testing in that case had actually showed that the veteran's hearing acuity worsened during service. As such, in that case the reliance by the examiner on the fact that hearing was within normal limits at separation did not address the fact that the hearing acuity had worsened during service. Conversely, in this case, audiometric testing actually showed improvement between enlistment and separation, and therefore a finding of normal hearing at separation has greater probative value. In Hensley, there was also a private medical opinion which suggested that the Veteran's hearing loss had been caused by military noise exposure. That is a very different picture than is shown in this Veteran's case in which there is no suggestion by any medical professional that the Veteran's bilateral hearing loss was the result of his military noise exposure. Here, the Veteran had diminished hearing acuity shown by testing at enlistment, no complaints of or treatment for hearing problems during service, improved hearing acuity (from what was shown at enlistment) at separation, and no complaints of or treatment for hearing problems for more than 40 years after separation from service. This altering of critical facts renders Hensley inapposite to this case, and therefore does not render the examiner's opinion inadequate for rating purposes. Here, the examiner was fully apprised of all of the aforementioned information by virtue of his review of the claims file and examination of the Veteran. Additionally the examiner was clearly aware of the Veteran's reported military noise exposure, as such was documented in the examination report. As such, the information that was relied upon by the examiner in reaching his opinion, namely normal hearing at separation, appears in this case to be a perfectly valid rationale for his conclusions. This opinion is also considered to be fully adequate for the adjudication of an aggravation claim as it does not show any evidence of in-service worsening of the Veteran's condition, and notes that the Veteran's hearing loss was within normal limits at separation. As such, a remand is not required for medical clarification. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs