Citation Nr: 1334158 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-09 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active military service from April 1961 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for hearing loss and tinnitus. The Veteran requested a personal hearing at the Houston RO before the Decision Review Officer (DRO), and was scheduled for a hearing on July 26, 2012. However, it appears the Veteran, through his representative, cancelled his hearing request. The Veteran also requested a hearing before a Veterans Law Judge at the RO. A Board hearing was scheduled on February 13, 2013 at the Houston RO, but the Veteran failed to appear. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (if the appellant fails to appear for a scheduled hearing, the case will be processed as though the request for a hearing had been withdrawn). In an March 2013 Board decision, the Veteran's claim was remanded for further procedural and evidentiary development. Specifically, the Board requested that the agency of original jurisdiction (AOJ) refer the Veteran's claims file to the same examiner who conducted the May 2008 VA audiological evaluation, or another VA audiologist if that particular examiner was unavailable, for a clarifying medical opinion addressing the nature and etiology of his hearing loss and tinnitus. The requested medical opinions were provided in June and July 2013, and copies of the VA medical opinions have been associated with his claims file. As such, the Board finds that the AOJ has complied with the remand directives. Neither the Veteran, nor his representative, has contended otherwise. See Stegall v. West, 11 Vet. App, 268 (1998). FINDINGS OF FACT 1. The Veteran does not have hearing loss that is attributable to active military service. 2. The Veteran does not have tinnitus that is attributable to his active military service. CONCLUSIONS OF LAW 1. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service; sensorineural hearing loss may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a December 2007 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, he was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. The Board finds that the December 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned December 2007 letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the December 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service and post-service treatment records have been associated with the claims file and/or scanned into the Virtual VA claims processing system, and neither the Veteran nor his representative have otherwise alleged that there are any outstanding medical records probative of the claims that need to be obtained. The Veteran also underwent a VA examination concerning his claims for hearing loss and tinnitus in May 2008 and additional VA addendum opinions were issued in June and July 2013. In that regard, 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). Here, the Board finds the VA examination obtained in this case in conjunction with the June 2013 medical opinion to be adequate. The examination included a review and discussion of the Veteran's existing medical records, an interview with the Veteran, including a discussion regarding his medical history, and an audiological evaluation. The June 2013 opinion addresses all of the pertinent evidence of record, to include statements given by the Veteran at the time of the examination, and provides a complete rationale for the opinions provided. The Board finds that the June 2013 addendum, combined with the May 2008 examination contains sufficient evidence by which to evaluate the Veteran's claim and further finds that the June 2013 VA opinion is supported both by the evidence of record and the reasons stated therein. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection for certain organic diseases of the nervous system, including sensorineural hearing loss, may also be established based upon a legal "presumption" by showing that it 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. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Veteran contends that he has hearing loss and tinnitus as a result of his exposure to acoustic trauma while serving as a track vehicle mechanic in service. According to the Veteran, he spent the majority of his period of active duty in the field servicing vehicles for "combat preparations and readiness operations." In addition to his exposure to sounds produced from vehicles, tanks and armored personnel carriers (APCs), he also claims to have been exposed to loud noises and sounds associated with artillery and small arms gunfire. The Veteran further contends to have experienced hearing problems and chronic ringing in his ears since service. See February 2008 Statement of Veteran and July 2008 NOD. The Veteran's DD Form 214 reflects that he served on active duty from April 1961 to April 1964 and that his military occupational specialty (MOS) was that of Track Vehicle Mechanic. The DD form 214 further reflects that the Veteran received the Marksman (Rifle M-1) award in service. Turning to the service treatment records, at the Veteran's April 1961 enlistment examination, the clinical evaluation of his ears and drums was shown to be normal, and the Veteran denied a history of ear, nose or throat trouble in his medical history report. On audiological examination, the examiner found pure tone thresholds, in decibels, to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10(25) 10(20) 5(15) - 5(10) LEFT 10(25) 10(20) 10(20) - 5(10) At the January 1964 examination conducted pursuant to the Veteran's separation from active service, the clinical evaluation of his ears and drums was shown to be normal, but he did report a history of ear, nose, or throat trouble on his report of medical history. The examination reflected pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10(5) -10(0) -10(0) -10(0) -10(-5) LEFT -10(5) -10(0) -10(0) -10(0) -10(-5) (The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. As these evaluations were conducted prior to October 1967, the Board has converted the ASA units (first threshold listed at each frequency) to ISO units (second threshold listed at each frequency).) Significantly, at both the enlistment and separation examinations, the examiners found the Veteran's hearing acuity to be within normal limits. (No hearing disability was acknowledged by either examiner at either evaluation.) In addition to these audiometric findings, the Board notes that there is no objective evidence of hearing loss until many decades after the Veteran's separation from service. The first post-service evidence associated with his claims file that is relevant to this claim is his August 2007 application seeking service connection for hearing loss. Therefore, the Board finds that hearing loss did not manifest in service or in the immediate post-service years. Because it did not manifest within one year from separation from service, the Board finds that presumptive service connection for sensorineural hearing loss is not warranted in this particular case. See 38 C.F.R. §§ 3.307, 3.309(a). As noted above, the Veteran was afforded a VA audiological examination in connection with his claim in May 2008, at which time he noted his military history and reported that he spent a great deal of time "in the field [during] many operations" where he was exposed to "tanks, artillery, combat exercises and gunfire." The Veteran described his tinnitus as a persistent ringing sound in both ears and claimed to have experienced difficulty hearing and tinnitus since his period of service. According to the Veteran, he not only worked as, and fulfilled the duties of, a truck mechanic and repairmen in service, but he also fired weapons with his right hand without the use of any hearing protection. With regard to his post-service history, the Veteran reported that he worked as an automobile mechanic for thirty years after service and did not use hearing protection while working in this industry. The Veteran also denied using hearing protection when using power tools. He underwent an audiological evaluation, the results of which showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 40 65 65 LEFT 50 40 45 55 65 Speech audiometry revealed speech recognition ability of 80 percent in both ears. The examiner diagnosed the Veteran with sensorineural hearing loss in both ears and bilateral tinnitus and determined that said disorders were not related to his in-service noise exposure. The rationale given for this opinion was that the Veteran did not experience a decrease in his hearing at his separation examination. At the outset, the Board notes that impaired hearing will be considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (2010). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, the evidence reflects that the Veteran has a current hearing disability for VA purposes. Id. Pursuant to the March 2013 Board remand, the Veteran's claims file was reviewed by another VA audiologist in June 2013, who, after reviewing the claims file and weighing the evidence of record, also concluded that the Veteran's tinnitus and hearing loss were not related to service. The June 2013 audiologist relied on a number of factors, to include a comparison of the Veteran's audiometric findings at his military enlistment and separation examinations, his prolonged post-service occupational noise exposure while working as a mechanic, and the absence of any complaints, notations or medical treatment for the Veteran's hearing loss or tinnitus in the years since his separation from service. According to the VA audiologist, "[w]ith no shift in thresholds from enlistment to separation, no specific event linked to onset, and normal thresholds at separation, it is unlikely that tinnitus started due to military service." The VA audiologist acknowledged the Veteran's lay assertions of ongoing hearing problems since service, but noted that the post-service medical records were clear for any complaints of, or treatment for, hearing loss for many years after service. The examiner also acknowledged the Veteran's report that he fired weapons in service during training, but found it "unlikely that an individual would suffer significant hearing loss from typical noise exposure experienced during initial training." According to the examiner, the Veteran's current hearing loss and tinnitus were more likely due to his 30 year post-military employment history working as a mechanic as well as to normal age related hearing changes. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss and tinnitus. The May 2008 VA examination confirms that the Veteran currently suffers from hearing loss and tinnitus. However, even taking into account the Veteran's claims of exposure to acoustic trauma while in service, both the May 2008 and June 2013 VA examiners found no link between any current hearing loss or tinnitus and military service. Noting that the evidence did not show any hearing loss at the Veteran's separation from active duty, or any complaints of hearing problems following the Veteran's period of active service, the June 2013 VA examiner determined that the Veteran's current hearing loss and tinnitus were not caused by or a result of his military service. Furthermore, the Board finds persuasive the absence of medical evidence showing a nexus between the Veteran's service and current hearing loss and tinnitus. In that connection, the Board notes that both VA audiologists acknowledged the Veteran's complaints of in-service noise exposure and hearing loss that began in service, but nonetheless concluded that it was less likely than not that the Veteran's current hearing loss was in fact due to his reported exposure to acoustic trauma in service or otherwise related to service. In so finding, both examiners looked to the Veteran's normal audiometric results at separation, as well as the remainder of his service treatment records, which were clear for any threshold shifts between the audiometric findings at enlistment and separation, and negative for any signs or complaints of, or treatment for hearing problems, in ultimately finding that any current hearing loss and tinnitus was not likely related to service. The June 2013 VA audiologist further noted that records were absent a specific onset event or incident to which the Veteran's hearing loss and tinnitus could be attributed, and the post-service medical evidence of record was clear for any complaints, notations or treatment for hearing loss and tinnitus for many years after the Veteran's separation from service. Indeed, the June 2013 VA audiologist's opinion encompasses a detailed review of the Veteran's treatment records both during and after service and provides an extensive rationale that supports the opinion provided, and includes references to medical literature articles in support of his reasoning. This evidence is not contradicted by any other medical evidence of record; there is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service, including his reported in-service exposure to acoustic trauma, and his current hearing loss and tinnitus. Moreover, the Veteran was noted in his January 1964 separation examination report, to have normal hearing on audiological testing. Although the Veteran reported to experience ear, nose or throat trouble on his medical history report, in the Physician's Summary and Elaboration of all Pertinent Data section, the medical examiner indicated that the Veteran was specifically referring to having fractured his nose three months prior, and not to any hearing impairment. The medical examiner also noted that the Veteran did not report any current problems arising from this fracture. In light of the fact that the Veteran had the opportunity to report any health problems at discharge, and reported to have fractured his nose several months prior on his medical history report, leads the Board to conclude that if he was in fact experiencing symptoms of decreased hearing acuity that began in service he would have reported these symptoms as well. The objective evidence reflects hearing within normal limits at discharge and the Veteran's failure to discuss any hearing problems at service separation suggests that hearing acuity was not a problem at the time. Additionally, when considering the Veteran's contentions, the VA audiologists nevertheless concluded that current hearing loss and tinnitus were less likely than not related to service. Furthermore, post-service information in the record refers to a diagnosis no earlier than May 2008 for hearing loss and December 2007 for tinnitus, following the Veteran's claim for benefits. All of this evidence leads to the conclusion that the Veteran's statements regarding in-service onset of hearing loss and tinnitus that has continued to the present time are not credible. Indeed, it appears very unlikely that someone with normal audiometric results could have noticed a decrease in hearing acuity. Furthermore, if the Veteran did notice hearing problems in service, he had the opportunity to report them at separation, something he failed to do. Furthermore, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter, such as an etiological relationship between current hearing loss and military service. See Bostain v. West, 11 Vet. App. 124, 127 (1998). As noted above, the Board acknowledges that the Veteran has reported that he first experienced a loss of hearing acuity during service that has continued to the present. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. However, in this instance, the Veteran's report of continuity of symptomatology of hearing loss is not supported by the other evidence, particularly the opinion of the May 2008 and June 2013 VA examiners who, collectively, evaluated the Veteran, reviewed his claims file, considered his contentions, and nevertheless concluded that the Veteran's version of events was not the likely explanation. His version of events is, as noted above, directly contradicted by the June 1964 separation examination report, which reflected normal hearing bilaterally. Moreover, the Board finds that the Veteran's claim is not supported by the post-service medical records as discussed above. In fact, the first post-service record evidencing the Veteran's complaints of hearing loss and tinnitus is his August 2007 claim, more than forty-three years after his separation. In these circumstances, the Board finds that the length of time between the Veteran's separation from active duty in 1964 and his first diagnosis of tinnitus and hearing loss, more than forty-three years later in December 2007 and May 2008, respectively, is evidence that weighs against continuity of symptomatology. See Maxson v. West, 12 Vet.App.453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service.) In addition, the Veteran's assertions are inconsistent with the evidence of record, namely, the service treatment records which are clear for any evidence or sign of hearing loss. The fact that the medical records do not provide subjective or objective evidence that supports the Veteran's more recent recollections of continuous symptomatology since service weighs against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). While the Veteran is competent to report symptoms since service, the Board does not find his recollections to be credible in view of the contemporaneous medical records that directly refute his assertions, the absence of evidence supporting his contentions, the significant gap in time between his separation from service and his first diagnoses of hearing loss and tinnitus, and in light of the competent medical evidence of record. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking the current disability to service. The Board is satisfied that the VA audiologists' opinions are adequate for deciding this appeal. The May 2008 and June 2013 VA medical opinions, which are based on the entire record, including the Veteran's own history, indicate that the Veteran's hearing loss and tinnitus are less likely than not related to military service and more likely attributed to his post-service employment history and normal age related changes. The Board is persuaded by these opinions because of the audiologists' expertise. Because the VA audiologists' opinions are not controverted by any other medical evidence of record, in light of the foregoing analysis and the underlying facts, the Veteran's service connection claims for hearing loss and tinnitus must be denied. Further, regarding the Veteran's tinnitus claim, because tinnitus cannot be objectively observed (except in rare instances), its presence is conceded. However, as noted above, the probative medical evidence fails to show that the Veteran's current tinnitus is related to military service. To the contrary, VA audiologists acknowledged the Veteran's claim of noise exposure in service and opined that it was less likely than not that the Veteran's current tinnitus is related to service. This opinion is not contradicted by any medical evidence of record. As there is no probative medical evidence establishing an etiological link between the Veteran's current tinnitus and his time in service, the service connection claim for tinnitus must be denied. Additionally, as noted above, his statements of continuity since service have been found incredible. Accordingly, the Board must conclude that the weight of the evidence is against the claims of service connection for hearing loss and tinnitus. See 38 U.S.C.A. §1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt provision does not help the Veteran. See 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 hearing loss and tinnitus is not warranted. ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs