Citation Nr: 1334059	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  12-13 286	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C.E. de Jong, Associate Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from July 1990 to January 1994.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the RO in Lincoln, Nebraska, which denied the above claims.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 

The Veteran was afforded a June 2012 formal hearing before a Decision Review Officer at the RO. A transcript of this hearing has been associated with the file. The Veteran requested a Travel Board hearing at the RO in his May 2012 Form 9. The hearing was scheduled for April 4, 2013, and the Veteran was notified in March 2013. However, the Veteran subsequently cancelled the Travel Board hearing. The request is deemed withdrawn. The Board may proceed. 38 C.F.R. § 20.704(d) (2013).

The Veteran submitted additional evidence after the final consideration of the claims by the RO. The Veteran waived initial consideration of the evidence by the RO. The Board may proceed on the appeal. See 38 C.F.R. § 20.1304(c) (2013). 


FINDINGS OF FACT

1. The Veteran does not have a hearing loss disability for VA purposes.

3. The Veteran's tinnitus is related to his noise exposure during active service.


CONCLUSIONS OF LAW

1. A hearing loss disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).

2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

The Veteran reports that he was routinely exposed to loud noise from unmuffled diesel engines, turbine engine aircraft, grenades, machine gun fire, and other weapons during his service in Kuwait and Germany, and that he was "danger close" to a large motor pool explosion that occurred in Kuwait.  

As noted above, the Veteran's noise exposure is conceded due to his MOS of Motor Transport Operator.  The Veteran contends that his bilateral hearing loss and tinnitus began in July 1990, at the outset of his active service, and that he has continued to experience bilateral hearing loss and tinnitus since that time.

The Board finds that the Veteran does not meet the VA criteria for a hearing loss disability at this time, and therefore does not have a current disability for VA purposes. As such, his claim of entitlement to service connection for bilateral hearing loss cannot be granted.

For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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 (2013).  The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley  v. Brown, 5 Vet. App. 155, 157 (1993).  The regulations set forth in 38 C.F.R. § 3.385 operate only to establish when a hearing loss can be service connected. Id.  at 159. Therefore, although the Veteran may have some degree of hearing loss, this degree may not meet the regulatory criteria for a hearing loss disability for purposes of VA compensation.

The Veteran contends that he currently has bilateral hearing loss which began at the outset of service. The Veteran also submitted an April 2013 letter from his private physician, Dr. R.B., stating that he is currently treating the Veteran for bilateral hearing loss. However, neither the Veteran's nor Dr. R.B.'s statements that the Veteran has bilateral hearing loss is sufficient evidence on which to determine whether the Veteran has a hearing loss disability for purposes of VA compensation. Neither of these statements is supported by audiometric measurements, and therefore these statements, while both deemed competent and credible, do not carry probative weight in determining whether the Veteran meets the VA criteria for a hearing loss disability.

The Veteran was afforded a VA audiological examination in November 2011. On examination, the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
5
15
LEFT
20
15
30
20
25

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear, providing highly probative evidence against the claim that he has hearing loss at this time.
	
The November 2011 VA examination is the only medical evidence of record measuring the Veteran's current hearing loss.  On examination, the Veteran did not have an auditory threshold of 40 decibels or greater at any of the listed frequencies in either ear.  The Veteran had a single auditory threshold of 26 decibels or greater, which was 30 decibels at 2000 Hz in the left ear.  The Veteran also had speech recognition scores greater than 93 percent in both ears. Therefore, he is not considered to have a current hearing loss disability for purposes of VA compensation.  As the Veteran does not have a current hearing loss disability, his claim of entitlement to service connection for bilateral hearing loss cannot be granted. 38 C.F.R. § 3.385; see also Shedden, supra.

The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In October 2010, the Veteran provided a Tinnitus Questionnaire in connection with his claim of service connection for tinnitus.  The Veteran reported that he had tinnitus in both ears, as manifested by a constant ringing sound. He reported that he had experienced tinnitus from July 1990 to the present, and that he believed his tinnitus was caused by his active service.  The Veteran's November 2011 VA examination also noted that the Veteran reported recurrent tinnitus that began in July 1990.  The Board finds that the Veteran has tinnitus, and therefore the first element of his claim of entitlement to service connection is met. 

The Veteran served as a Motor Transport Operator in the Army, and noise exposure is due to his Military Occupational Specialty (MOS).  The Veteran contends that he has experienced tinnitus since he entered service in July 1990. In his October 2010 statement supporting his claim, he asserted that during his basic and AIT training he was "constantly exposed to grenades, fixed charges, M16 fire, machine gun fire, M79 fire, and other weapons." He further asserted that after training he was "constantly exposed to extreme engine noise" in his position as a truck driver. During the June 2012 RO hearing, the Veteran also described his proximity to a motor pool explosion in Kuwait in July 1991. The Veteran testified that he was approximately a quarter mile away from the explosion, and that it was "the loudest thing [he'd] ever heard."

The Veteran's service treatment records are absent of any complaints, findings, or treatment for hearing problems. His service treatment records contain three audiological examinations, from 1989, 1992, and 1993, all of which reflect normal hearing in both ears. There is no other medical evidence of record documenting the Veteran's tinnitus from the period after his separation from service to the time at which he filed his claims for service connection.

The Board finds the Veteran's statements to be competent and credible evidence of his in-service acoustic trauma, which is corroborated by information on his DD-214 and service treatment records indicating his MOS and the locations in which he served. Therefore, the Board finds that in-service acoustic trauma has been established and the second element of the Veteran's claim of entitlement to service connection for tinnitus has been met.

There is conflicting medical evidence of record as to the nexus between the Veteran's current tinnitus and his active service.  At the Veteran's November 2011 VA examination, the examiner noted that she could not provide a medical opinion on the etiology of the Veteran's tinnitus without resorting to speculation.  She stated the reason speculation would be required as follows: "Normal hearing from the service strongly suggests any reported tinnitus is less likely to be from noise exposure. Therefore the reported tinnitus is less likely as not (less than 50/50 probability) caused by or a result of military noise exposure." The Board will treat the examiner's statement as a negative opinion regarding the nexus between the Veteran's current tinnitus and his active service.

The Veteran submitted an April 2013 statement from his private physician, Dr. R.B. Dr. R.B. stated the following: "Based on a review of [the Veteran's] available medical records, as well as my clinical notes and examination, I consider it as likely as not that his bilateral hearing loss and tinnitus is due largely, if not entirely, to his active duty in the Army...." He went on to address the Veteran's reports of the sources of noise exposure in service, and concluded that "this noise trauma would have been more than sufficient to cause the conditions present today." The Board finds that both medical opinions of record are competent and credible, and both adequately considered the relevant evidence and provided sufficient rationales for their opinions.  As such, they are afforded equal probative weight. 

As the evidence is in equipoise as to the nexus between the Veteran's current tinnitus and his active service, the Veteran must prevail. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Resolving doubt in the Veteran's favor, service connection for tinnitus is warranted. See Shedden, supra.

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for bilateral hearing loss and tinnitus.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must inform the claimant of any information and 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.  Compliance with the first element requires notice of the five service connection elements: (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.  See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  A November 2010 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claims in December 2011. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).

The Veteran was afforded a November 2011 medical examination to obtain an opinion as to whether his bilateral hearing loss and tinnitus were the result of noise exposure during active service.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history and listened to the Veteran's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 300.  

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is granted.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs