Citation Nr: 1334295 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-00 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have a bilateral hearing loss disability due to any incident of his active duty service. 2. The preponderance of the evidence reflects that the Veteran does not have tinnitus due to any incident of his active duty service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a bilateral hearing loss disability are not met, to include being presumed to be of service onset. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. The criteria for the establishment of service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in September 2010. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. 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. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in October 2010 for his bilateral hearing loss and tinnitus claims. 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. The examiner provided a detailed conclusion for the opinions that were reached. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection The Veteran alleges that he had in-service noise exposure from small arms fire, artillery, grenades, and booby traps which caused his current bilateral hearing loss disability and tinnitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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). 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). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including hearing loss, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran alleges that he had in-service noise exposure from small arms fire, artillery, grenades, and booby traps which caused his current bilateral hearing loss disability and tinnitus. With respect to claims of service connection for hearing loss, the United States Court of Appeals for Veterans Claims (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. 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. The results of an October 2010 private audiogram show that the Veteran currently has a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of in-service occurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such occurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (2013). Accordingly, as the Veteran is in receipt of the Combat Infantryman Badge, the Board will concede that the Veteran was exposed to loud noises while in-service. However, there must still be a nexus between the claimed in-service disease or injury and the current disability. Hickson, supra. At the Veteran's initial September 1969 examination the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 -10 - 5 LEFT 10 -5 -10 - 0 The Veteran denied any ear trouble at his entrance examination and hearing loss was not diagnosed. At his separation examination in August 1971 the Veteran's hearing was 15/15 on the whisper test and he reported that his health condition was good and unchanged from his previous physical. He was found to be qualified for separation from service. The service treatment records show that that the Veteran did not report hearing loss or tinnitus at any time during service. The conditions were also not diagnosed at any time during service. This weighs against the Veteran's contentions that his claimed disorders are related to service. In November 1971, three months after separation from service, the Veteran filed a claim for disability compensation for malaria, a nervous condition, and a shrapnel wound to the right hand. He did not reference hearing loss or tinnitus on this application or at his January 1972 VA examination. This weighs against the Veteran's contentions that his hearing loss and tinnitus began in service and continued on thereafter. The first complaints of hearing loss and tinnitus come from a statement dated in January 2004, 33 years after separation from service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the disorder at issue. 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); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The evidence weighs against the Veteran's claims for service connection. A January 2004 statement from the Veteran's private physician noted that the Veteran's self-reported history was that he had longstanding hearing loss that was related to explosions during the Vietnam War. An October 2007 VA treatment record noted the Veteran was issued hearing aids bilaterally. In a July 2009 audiology consultation the Veteran reported hearing loss which was worse in his left ear. He also reported intermittent, bilateral tinnitus. His noise exposure included combat experience in Vietnam and post-service occupational exposure working for the railroad. He was diagnosed with bilateral mild to moderately-severe sensorineural hearing loss. The Veteran was afforded a VA audiological examination in October 2010. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 50 60 60 LEFT 35 40 60 75 70 The Veteran's speech recognition scores on the Maryland CNC Test were 94-100 percent for the right ear and 80-92 percent for the left ear. The Veteran reported that he his hearing loss had a gradual onset over the years, but that he was first treated in 2006. His in service noise exposure included combat, artillery fire, mortars, and booby traps. Post-service he worked for the railroad company in the engineering department. Recreational noise exposure included some hunting and general lawn mower use. He also reported his tinnitus existed "for quite awhile/years." The Veteran was diagnosed with sensorineural hearing loss bilaterally. The examiner opined that the Veteran's hearing loss and tinnitus were not related to service and were most likely caused by extensive post-service occupational noise exposure and presbycusis. His rationale was that the Veteran's service treatment records were silent for complaints of hearing disturbances and his January 1972 VA examination did not diagnose hearing loss or tinnitus. He also noted the Veteran entered and exited service with normal hearing. The examiner also stated that to the extent malaria medication causes permanent or temporary hearing disturbances, these would have manifested during treatment or shortly thereafter, not years later. The examiner also cited to medical literature which found that hazardous noise exposure had an immediate effect on hearing and does not cause delayed onset. He also noted there is no research evidence to support a claim of delayed onset tinnitus after an incident of noise exposure as tinnitus has an immediate onset after significant noise exposure. He also found the Veteran's reports of tinnitus to be inconsistent. See July 2009 VA treatment record and October 2010 VA examination report. Ultimately the examiner concluded the Veteran's multiple decades of post-service noise exposure were far greater than his 2 years of hazardous noise in the military. The Board observes that the January 2004 private physician reported the Veteran's history of noise exposure in service which he linked to his current hearing loss. However, the Veteran's self-reported history regarding the onset of hearing problems, unenhanced by additional medical comment, does not constitute competent medical evidence merely because the transcriber happens to be a medical professional. Howell v. Nicholson, 19 Vet. App. 535 (2006); LeShore v. Brown, 8 Vet. App. 406 (1995). In this case, there is no medical opinion which concludes that the Veteran's hearing loss and tinnitus were, or are, in any way related to service. The Board has considered the statements of the Veteran and his wife that he currently has hearing loss and tinnitus as a result of in service noise exposure. See e.g., September 2010 statements. The Veteran and his wife are competent to report observable symptoms, including trouble hearing, difficulty communicating, and the need to turn the volume up when watching television. Layno v. Brown, 6 Vet. App. 465 (1994). While competent to discuss symptoms, the Veteran is not then competent to diagnose disabilities and link them back to service. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), diagnosing and determining the etiology of a bilateral hearing loss disability and tinnitus falls outside the realm of common knowledge of a lay person. See Jandreau, supra. In this case, given the Veteran's lack of medical expertise, his assertions that he currently has a bilateral hearing loss disability and tinnitus that are related to service are beyond his competence. Further, as there is no evidence of record of a bilateral hearing loss disability within one year of service discharge, the presumption of service connection is not applicable because the disorder's onset was beyond the presumptive period. 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs