Citation Nr: 1334628	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  13-02 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1. Entitlement to service connection for hearing loss.

2. Entitlement to service connection for tinnitus. 


ATTORNEY FOR THE BOARD

L. McCurdy, Associate Counsel











INTRODUCTION

The Veteran served on active duty from May 2006 to September 2006, September 2007 to October 2008, March 2011 to August 2011, and January 2012 to October 2012. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York which denied service connection for bilateral hearing loss and tinnitus.  


FINDINGS OF FACT

1. There evidence of record does not shoe evidence of a current hearing impairment under 38 C.F.R. § 3.385 for the purpose of VA disability compensation.

2. The record tends to show that the Veteran's tinnitus is related to his active duty service. 


CONCLUSIONS OF LAW

1.  Hearing impairment was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§3.303, 3.385 (2013).

2. Affording the benefit of the doubt to the Veteran, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § 3.385 (2013).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

A VCAA letter dated in February 2011, prior to the March 2012 rating decision, fully satisfy the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2012); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter advised the Veteran what information and evidence was needed to substantiate the Veteran's initial service connection claim.  This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies.  Additionally, this letter described how disability ratings and effective dates are assigned.  Dingess v. Nicholson,  19 Vet. App. 473 (2006). 

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, including obtaining service and post-service treatment records pertaining to his claimed disabilities.  VA has given the Veteran an opportunity to submit additional evidence and information in support of his appeal.  
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.  38 C.F.R. § 3.159(c)(4)(i) (2013).  In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  A VA examination was performed in March 2011 in order to obtain medical evidence as to the nature of the claimed disability.  To that end, 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).

The Board finds the March 2011 VA audiology examination adequate for the purpose of deciding the issues of service connection for hearing loss and tinnitus.  It contains sufficient information and opinions on the issues on appeal, including statements from the Veteran and audiologic evaluations.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination regarding the claims for service connection for hearing loss and tinnitus has been met.  38 C.F.R. § 3.159(c)(4).

The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, the Veteran's statements, and a VA medical examination report.  The Veteran has not indicated, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Standard of Review

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  38 U.S.C.A. § 7104(a) (West 2012).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Merit of the Claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  For the showing of 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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
Establishing service connection generally requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) causal relationship between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Where a Veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2013).

Hearing Loss Disability

The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level indicates some degree of hearing loss, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11, Stephen A. Schroeder et al. eds. (1988)).

The Veteran filed a claim of service connection for hearing loss stating that the disability resulted from exposure to explosions, weapons fire, and constant noise of vehicles and generators during service.  However, the Veteran has not submitted any competent, credible evidence of a current diagnosis of a bilateral hearing disability.

Competency is a question of fact, which is to be addressed by the Board.  See Jandreau v. Nicholson, 492 F.3d 1372 (2007).

A layperson is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).  Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009) (citing Jandreau, 492 F.3d 1372 (2007)).

Although the Veteran is competent to describe symptoms of impaired hearing, a hearing loss disability is not a simple medical condition under case law that has been found to be capable of lay observation.  The determination as to the presence of a hearing loss disability, therefore, is medical in nature and competent medical evidence is needed to substantiate the claim.  See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (on the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion.  38 C.F.R. § 3.159.  It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a diagnosis of a hearing loss disability.

Where, as here, there is a question of the presence or a diagnosis of a hearing loss disability, not capable of lay observation by case law, and a hearing loss disability is not a simple medication condition under Jandreau for the reason expressed, to the extent the Veteran's statements are offered as proof of the presence of a bilateral hearing loss disability in service or since service, the Veteran's statements are not competent evidence.
As for the Veteran describing a contemporaneous medical diagnosis or the Veteran describing symptoms that later support a diagnosis by a medical professional, there is no evidence that a health-care professional diagnosed a hearing loss disability in the Veteran's treatment records.

The service treatment records show that on enlistment examination, in February 2006, the results of audiology testing were:


HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
0
0
5
LEFT
0
0
0
0
0

During service, the Veteran had several audiograms.  In October 2007, the results were:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
5
5
10
LEFT
10
10
5
10
10

In September 2008, the results of audiology testing were:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
5
15
10
LEFT
10
10
10
15
10

In January 2011, the results of the audiology testing were:


HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
0
10
10
LEFT
10
10
5
5
5
At a VA examination in March 2011, the Veteran complained of noise exposure to weapons, airstrikes, and the loud volume of his radio headset while in service.  He stated that he currently has difficulty hearing in crowds and restaurants.  There was no history of occupational or recreational noise exposure.  The results of the audiology testing were:


HERTZ

500
1000
2000
3000
4000
RIGHT
5
10
5
10
5
LEFT
10
10
10
10
5

Average pure tone thresholds, in decibels (dB), were 8 dB, right ear, and 9 dB, left ear.  The examiner noted that speech recognition testing, performed with the Maryland CNC word list, revealed speech recognition ability of 100 percent in the right ear and 94 percent in the left ear.  The examiner noted that pure tone testing revealed normal hearing acuity at all test frequencies.

The Board finds that the March 2011 VA examination report and opinion are competent and credible regarding the Veteran's claimed hearing loss disability.  Although the service treatment records were not originally included in the file sent to the examiner, the file was returned once these records were incorporated for review.  After review of the medical history provided by the Veteran and the service treatment records, the examiner found no current disability.   

As the record now stands, there are no audiograms showing a current hearing loss disability under 38 C.F.R. § 3.385, that is, an auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of 40 decibels or greater; or auditory thresholds for at least three of the tested frequencies of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent.

One of the requirements for service connection is that the claimed disability currently exists.  Degmetich v. Brown, 104 F.3d 1328, 1332 (1997).  As there is no competent evidence of a current hearing loss disability under 38 C.F.R. § 3.385, there is no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As the preponderance of the evidence is against the claim of service connection, the benefit of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 

Tinnitus

Unlike a hearing loss disability, tinnitus can be confirmed by lay testimony.  As stated, lay evidence is sufficient to establish a diagnosis when a layperson is competent to identify the disorder.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.2009) (citing Jandreau).  Ringing in the ears is a condition that is capable of lay observation; therefore, the Veteran is competent to report that he experiences tinnitus and is also competent to identify when this disorder began.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).

The evidence necessary to establish the incurrence element of an in-service disease or injury will vary depending upon whether the Veteran engaged in "combat with the enemy."  If the evidence establishes that the Veteran engaged in combat with the enemy, in the absence of clear and convincing evidence to the contrary, the incurrence element is presumed to be satisfied as long as the evidence is consistent with the circumstances, conditions, and hardships of such service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  However, application of the combat presumption for the incurrence element of service connection does not alter the fundamental requirements of a current disability or a nexus to service.  Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007).

The Veteran's service records indicate that his military occupational specialty (MOS) was infantryman and that he served in Afghanistan.  His awards and decorations include the Combat Infantry Badge, awarded for engaging in active ground combat in Afghanistan in February 2008.  He was also awarded an Army Commendation Medal with an associated explanation including that the Veteran helped oversee security at checkpoints which were often under attack by indirect and direct fire.

The Veteran contended that he did not realize the severity of his tinnitus until shortly after returning home.  He stated during his VA examination in March 2011 that he had bilateral, intermittent tinnitus that was greater in the left ear than the right. He also reported that he had tinnitus for the past one and a half years. 

The VA examiner found that since the Veteran did not complain of tinnitus on a medical intake in 2009, the Veteran's "tinnitus, if present, is not likely related to military service."  The Veteran explained that he might not have been asked about tinnitus or he denied it in order to complete the exam more quickly.  He further stated that he was reluctant to complain of injury during demobilization for fear of delaying his return home from overseas.  It does not appear that the examiner considered the Veteran's statement that he had ringing in his ears for the past year and a half, but rather based findings on a lack of evidence in the service records.

In this case, giving the benefit of the doubt to the Veteran, his lay statements that he experienced tinnitus beginning during his military service are competent, credible, and provide a sufficient basis upon which to grant the benefit sought on appeal.  Nothing in the record suggests that there was a post-service event that could account for the reported tinnitus.  Although the Veteran's service treatment records are negative for history, complaint or treatment of tinnitus, the Board finds that the Veteran's assertions of noise exposure and ringing of the ears must be conceded based on the combat presumption and the circumstances of his service.

In view of the combat presumption and the Veteran's current assertions that he has suffered tinnitus since service, the Board is able to conclude that the positive evidence and the negative evidence is essentially in a state of equipoise.  38 U.S.C.A. § 5107(b).  Therefore, service connection is warranted for tinnitus and the claim is granted. 



ORDER

Service connection for a bilateral hearing loss disability is denied. 

Service connection for tinnitus is granted, subject to governing criteria applicable to the payment of monetary benefits.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs