Citation Nr: 1334079	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  13-12 413	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Luke Pelican, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the United States Air Force from May 1965 to April 1969.

This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2012 rating of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Board has considered the records contained in the electronic claims file and the paper claims folder in adjudicating this decision.


FINDINGS OF FACT

1.  The current bilateral hearing loss disability is not etiologically related to a disease, injury, or event in service.

2.  Tinnitus is not etiologically related to a disease, injury, or event in service.


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was not incurred in service, nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2.  Tinnitus was not incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2013).

The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Here, prior to the initial rating decision in this matter, a letter from VA dated January 2012 notified the Veteran of how to substantiate a service connection claim, informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim, and informed him how ratings and effective dates are assigned.  Therefore, the duty to notify is satisfied. 

VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013).

Here, the Veteran's service treatment records and VA medical records are in the claims file.  He has not identified any other records or evidence that remains outstanding.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c) (2013). 

The Veteran was provided a VA examination for his bilateral hearing loss and tinnitus in May 2012 and an addendum opinion was completed in April 2013.  As will be discussed in greater detail below, the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an evaluation of the Veteran, and provided opinions supported by a rationale such that the Board can render an informed determination.  

In a July 2012 Notice of Disagreement, the Veteran through his representative argued that the VA examination report was inadequate for rating purposes.  Specifically, the Veteran contended that the examiner's opinion was fundamentally flawed because the examiner relied on the fact that the separation examination revealed no disabling hearing loss.  In a June 2013 statement, the Veteran's representative cited to Fast Letter 08-10, which was issued by the Veterans Benefits Administration, and noted that if hearing loss were present, the examiner must then provide an opinion about the association of tinnitus to hearing loss.

The Board has reviewed the May 2012 VA examination report and April 2013 addendum opinion carefully for adequacy.  However, there is nothing to suggest that the opinions provided as to hearing loss and tinnitus were inadequate.  Indeed, the Board finds no error in the examination reports as the examiner provided a rationale as to why the Veteran's current hearing loss was less likely than not linked to his military service.  That rationale was based on an examination of the Veteran and a review of his history.  To the extent that the examiner did not opine as to whether the Veteran's tinnitus was secondary to his hearing loss, the Board notes that because it was the VA examiner's opinion that the Veteran's hearing loss was not related to his service, even if an association were made between his hearing loss and his tinnitus, such would not serve to establish service connection for tinnitus.

The Board, therefore, concludes that the examination reports are adequate for the purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Accordingly, VA's duty to provide a VA examination is satisfied.

Additionally, the Veteran has declined the opportunity to present testimony before a Veterans Law Judge.  The Veteran has been accorded the opportunity to present evidence and argument in support of his claim.  Accordingly, VA's duty to notify and assist under the VCAA is satisfied, and the Board may proceed with appellate review.

Analysis

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2013).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2013). 

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  In the instant case, there is no presumed service connection because the Veteran was not diagnosed with a hearing loss disability within one year of service and, indeed, was not diagnosed until decades after service.

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay 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 Hickson v. West, 12 Vet. App. 247, 253 (1999).

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (the Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service-connected.  Id at 159.

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; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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).

Here, the Veteran alleges that he has current bilateral hearing loss and tinnitus due to in-service noise exposure.  Specifically, the Veteran asserts that he had significant noise exposure from diesel engines and aircraft while working as an electric power production specialist.  

The Veteran's personnel records confirm service as a power production specialist.  Given the duties associated with this position, in-service exposure to hazardous noise is presumed.

The Veteran's service treatment records, however, are silent as to any complaints, treatment or diagnoses of hearing loss or tinnitus.  However, the Veteran's separation examination revealed a threshold shift in the Veteran's hearing.

On his May 1965 enlistment examination for the Air Force, a clinical evaluation of the Veteran's ears was normal.  Audiometry revealed puretone thresholds, in decibels, when converted to ISO (ANSI) units, were:

Hz
500
1000
2000
3000
4000
6000
R
15
10
10
n/a
5
n/a
L
20
10
10
n/a
5
n/a

In the associated report of medical history, the Veteran denied having any ear, nose, or throat problems.

On his January 1969 separation examination, a clinical evaluation of the Veteran's ears was normal.  Audiometry revealed puretone thresholds, in decibels, were:

Hz
500
1000
2000
3000
4000
6000
R
25
10
15
15
15
10
L
25
15
10
20
20
20

In the associated report of medical history, the Veteran denied having any ear, nose, or throat problems.

As noted, the Veteran was afforded a VA audiological examination in May 2012.  The examiner noted review of the claims file, examined the Veteran, and rendered a diagnosis of bilateral sensorineural hearing loss in the frequencies of 500-4000 Hz and 6000 Hz or higher.  Upon audiological evaluation, the pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
10
25
55
LEFT
15
20
15
55
60

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 90 percent in the left ear.

The Veteran was unable to link the beginning of his tinnitus to a specific period of time, but reported that the hearing loss and tinnitus had started to affect his ability to communicate effectively.  The examiner concluded that it was not at least as likely as not that the Veteran's hearing loss and tinnitus disabilities were caused by or the result of his military service.  The rationale was that the Veteran had normal hearing at induction and separation, and that there was no evidence of tinnitus in the service treatment records.

Following a review of the claims file, the examiner provided an addendum opinion in April 2013, in which he addressed the threshold shift between the Veteran's enlistment examination and separation examination.  The examiner noted that despite the shift, the Veteran's separation examination still showed normal auditory thresholds.  Citing to the Institute of Medicine, the examiner explained that based on current knowledge of cochlear physiology there was insufficient scientific evidence for delayed-onset of hearing loss secondary to military noise exposure, adding that hearing loss should occur at the time of exposure.  The examiner further explained that there was not sufficient evidence from longitudinal studies to determine whether permanent noise-induced hearing loss can develop years after military noise exposure.  The examiner added that the available anatomical and physiologic evidence suggested that delayed post-exposure noise-induced hearing loss was not likely.  The examiner then noted that where hearing was normal at discharge and there was no permanent significant threshold shift greater than normal progression and test retest variability during military service, there was no basis on which to conclude that a current hearing loss disability was causally related to military service, including noise exposure.

With respect to the first Hickson element, a current disability, the Veteran has current bilateral sensorineural hearing loss and tinnitus disabilities.  In addition, his hearing loss meets the requirements of 38 C.F.R. § 3.385 as the Veteran has auditory frequencies in both ears that are 40 percent or greater.  Thus, the first Hickson element of a current disability is satisfied.

With respect to the second Hickson element, in-service incurrence, the Veteran claimed that the hearing loss and tinnitus began while he was in service.  The Veteran referred to specific noise sources he encountered, including diesel engines, a power plant, and aircraft.  In a February 2012 statement, the Veteran wrote that he didn't remember having "this noise (sounds like locust) in his head" before joining the service.  He added that he never went to the doctor and did not know that there was any help for him.  As noted above, given the duties associated with the Veteran's position, in-service exposure to hazardous noise is presumed.  Thus, the second Hickson element, in-service incurrence, is met.

The pertinent inquiry, then, is whether the Veteran's current bilateral hearing loss and tinnitus disabilities began in service or were caused by any incident of service, to include noise exposure.  The Board concludes they were not.

The Board finds the opinions as to the etiology of the Veteran's hearing loss and tinnitus expressed in the May 2012 VA examiner's report and April 2013 addendum opinion to be of significant probative value.  The examination report was based on a review of the claims file, interview of the Veteran, and an audiological evaluation.  The VA examiner considered the Veteran's reported in-service noise exposure, but concluded that it was less likely than not that his current hearing loss and tinnitus were related to his military service.  The examiner discussed the absence of disabling hearing loss at entrance and separation from service, and addressed the presence of a threshold shift in the Veteran's hearing acuity during service.  

When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered.  The opinion is considered probative if it is definitive and supported by detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."  See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008).  Consequently, the Board finds this report to be the most probative evidence of record as to whether his current hearing loss disability and tinnitus are related to service.

The Board has considered the Veteran's contentions that his current bilateral hearing loss and tinnitus were caused by his in-service exposure to noise from diesel engines and other sources during his work as an electric power production specialist.  In this regard, the Veteran is certainly competent to report that he experienced difficulty hearing, and tinnitus is the type of disability that is capable of lay diagnosis.  See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002).  The Board finds it significant, however, that the Veteran denied a history of hearing loss or ear problems at the time of his separation examination.  Moreover, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between any current hearing loss and tinnitus and in-service noise exposure.

Given the Veteran's lack of demonstrated medical expertise, the Board finds the opinion of the competent medical professional to be the most probative evidence of record as to the relationship between the Veteran's current bilateral hearing loss and tinnitus and his military service, and the Board is of the opinion that this opinion ultimately outweighs the Veteran's contentions as to etiology.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise).  In this regard, the separation examination indicated no abnormalities with respect to tinnitus and the Veteran was unable to link the tinnitus to a specific time period.  Moreover, he appears to assert that it is a symptom of current hearing loss.  Even if the Veteran's assertions concerning the etiology of hearing loss and tinnitus are considered competent, as well as credible and probative, they are outweighed by the separation examination which did not show any complaints or findings of tinnitus and the examiner's opinion, which was found to be based on an examination, review of the history and was supported by an adequate rationale, that current hearing loss and tinnitus are not related to service.  Thus, the third Hickson element, nexus, is not met.  

In sum, the Board concludes that the preponderance of the evidence is against the claims, and that service connection for bilateral hearing loss and tinnitus is not warranted.  As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.

Entitlement to service connection for tinnitus is denied.



____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs