Citation Nr: 1334071 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-10 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1991 to October 1998 with prior service in the National Guard. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claims of entitlement to service connection for a right ear hearing loss disability and tinnitus. The issue of service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent evidence does not link the Veteran's right ear hearing loss disability to his service; the first indication of a disability was not until 2011. CONCLUSION OF LAW A right ear hearing loss disability was not incurred in service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in September 2011, prior to the April 2012 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The September 2011 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. As the Board will discuss in detail in the analysis below, the Veteran was provided a VA audiological examination in January 2012. A review of the VA examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the examination report of record is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2013); Barr, 21 Vet. App. at 312 Additionally, the Veteran has declined to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Right Ear Hearing Loss Disability The Veteran essentially contends that he has a current right ear hearing loss disability related to acoustic trauma during service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 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). In order to show 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss disability may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, this presumption does not apply, as discussed below. 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, 4000 Hertz is 40 decibels or greater; 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 (2013). A veteran will be considered 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 thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111 , VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111 ], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). 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 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2013). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2013). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, the Board notes that the Veteran's examination report at service entry in August 1991 showed the following audiometric findings: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 10 10 20 20 40 The Board notes that these results do not show hearing loss for VA compensation purposes and a hearing deficit was not diagnosed by the examiner. (Additionally, in-service audiograms showed normal hearing). The Veteran is therefore entitled to a presumption of soundness at service entrance for VA purposes. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Thus, service connection based upon aggravation of a pre-existing disability is precluded, and further analysis must focus upon service incurrence. The record shows that the Veteran currently has a right ear hearing loss for VA compensation purposes as noted throughout the record. See e.g. January 2012 VA examination report. Hickson element (1) is accordingly met. With respect to element (2), in-service disease or injury, the Board will separately discuss disease and injury. As to in-service disease, a review of service treatment records does not reveal complaints consistent with, or a diagnosis of a right ear hearing loss disability. Nevertheless, the Veteran has asserted that he sustained acoustic trauma during service. The Veteran's Form DD 214 shows that he was a Light Vehicle Mechanic. The Veteran is competent to give evidence about what he experienced; and acoustic trauma and hearing loss are subject to lay observation. See e.g., Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that the Veteran was competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). He is also credible with regard to noise exposure in service, especially given his military occupational specialty. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Therefore, the Board finds that the Veteran was exposed to hazardous noise during service. Hickson element (2) is satisfied. With respect to crucial Hickson element (3), nexus, the question presented in this case, i.e., the relationship, if any, between the Veteran's right ear hearing loss disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Upon review of the claims folder and evaluation of the Veteran, the January 2012 VA examiner, in relevant part, noted that hearing loss was less likely than not a result of military service as there was no change in hearing and no significant threshold shift during service. In rendering her opinion, the VA examiner acknowledged that the Veteran was exposed to noise during service and noted the Veteran's report of military and occupational noise exposure, which included combat and mechanical noise during service and 22 years as a mechanic with occasional hearing protection. The Veteran denied recreational noise exposure and family history of hearing loss. The Board finds the January 2012 VA examination report to be highly probative, as it is based on a thorough review of the Veteran's medical records and cites to relevant medical principles. The opinion is also consistent with the other evidence of record and is supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Furthermore, the opinion was obtained from a licensed medical professional rather than a lay person. The Veteran has submitted no competent nexus evidence contrary to the VA opinion. The Veteran has been accorded ample opportunity to furnish medical evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2013) (noting it is a claimant's responsibility to support a claim for VA benefits). Indeed, there is no competent evidence of record showing that the Veteran's right ear hearing loss is related to service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, assertions as to whether the Veteran's current hearing loss is related to service are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disability, which affect a complex part of the body. There is no dispute that the Veteran is competent to report events that occurred in service, and to describe symptoms of difficulty hearing because this requires only personal knowledge as it comes to him through his senses. In fact the Board has accepted his lay testimony as evidence of an in-service event; however, the Veteran is not competent to ascertain the etiology of his current disorder, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence to the VA examiner's opinion that was rendered by a licensed medical professional rather than a lay person in light of the complexity of the medical condition at issue. Additionally, to the extent that the Veteran may assert that he has had right ear hearing loss since service, the Board finds that the Veteran is both competent and credible. See Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Nevertheless, the Board affords greater probative weight to the VA medical opinion as the examiner's findings were rendered by a medical professional, who reviewed the claims folder, which included the lay assertion, and based on medical principles. Additionally, the medical opinion is supported by a thorough explanation which is consistent with the evidence of record. Further weighing against the Veteran's claim is the length of time that has elapsed between active service and the initial documentation of hearing loss in August 2011, which is over a decade after service discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and that evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a condition was incurred in service). The probative evidence of record weighs against a finding of either chronicity during active service or a continuity of symptoms following active service. See 38 C.F.R. § 3.303(b) (2013). Rather, it shows that the Veteran's current hearing loss did not manifest until around 2011. Consequently, service connection for the Veteran's right ear hearing loss cannot be awarded on the basis of a chronicity in service or a continuity of symptoms thereafter under 38 C.F.R. § 3.303(b) for chronic disabilities. Nor is presumptive service connection for sensorineural hearing loss available, as the first documented diagnosis of the disability is more than one year from the Veteran's separation from service. Thus, it did not manifest to a degree of 10 percent within that first year out of service. Based on the foregoing, Hickson element (3) is not met, the weight of the evidence is against the Veteran's claim, and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for right ear hearing loss disability is not warranted. ORDER Service connection for a right ear hearing loss disability is denied. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran essentially asserts that he has tinnitus due to noise exposure in service, and that he has had it ever since service. On the examination report, the examiner noted the Veteran's report of onset of tinnitus 15 to 20 years before and an incident in which his right ear plug fell out when there were five firings and having tinnitus and dizziness following that incident. Upon review of the claims folder, and interview and evaluation of the Veteran, the examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. In rendering her opinion, the examiner cited to the lack of complaints of tinnitus in the service treatment records as well as no significant change in hearing on audiograms during service. The Board finds that the VA examination report is inadequate as the examiner relied solely on the lack of documented complaints in service despite the Veteran's assertions as to onset during and ever since service. However, the lack of contemporaneous evidence is not determinative for service connection claims. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). Furthermore, the Board notes that the Veteran is competent as to any assertions with regard to his tinnitus as he is competent to give evidence about what he experienced; and acoustic trauma and tinnitus are subject to lay observation. See supra Charles, 16 Vet. App. at 374; Layno, 6 Vet. App. at 469; Falzone, 8 Vet. App. at 405. Additionally, as established above, he is credible with regard to noise exposure in service, especially given his military occupational specialty. See supra Buchanan, 451 F.3d at 1331. Therefore, on remand, another opinion as to the etiology of his current tinnitus must be obtained. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Forward the claims folder to an audiologist, so that a review of the file is conducted. Based on the review, the examiner must determine whether it is at least as likely as not (a 50 percent probability or greater) that any current tinnitus is etiologically related to the Veteran's credible accounts of noise exposure in service. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence regarding the onset of the disability reported by the Veteran (i.e., in service), as well as the competent and credible lay testimony regarding experiencing those symptoms since service. The examiner must provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs