Citation Nr: 1334848 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 12-22 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1959 to March 1962 with overseas service in Germany. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bilateral hearing loss and tinnitus. The Veteran requested a Board hearing at his local VA office. However, in November 2012, he withdrew his request for such a hearing. The Virtual VA claims file includes VA treatment records from the Northern Florida/Southern Georgia VA dating from June 2002 to November 2011 that appeared to be unviewed by the RO. In September 2013, the Veteran waived review of these records by the AOJ. As such, the Board has jurisdiction and may proceed with adjudication at this time. FINDINGS OF FACT 1. The Veteran has a current hearing loss disability, but it is not causally connected to in-service noise exposure and did not manifest during service or within one year; instead the onset was delayed. 2. The Veteran has a current tinnitus disability, but it is not causally connected to his noise exposure during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In September 2009, the RO sent a letter to the Veteran giving him notice, which satisfied the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). This letter was sent prior to initial adjudication of his claim. The Veteran was informed of what evidence and information he needed to substantiate his claims, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded an examination with a VA audiologist in January 2010. There is no argument or indication that the examination or opinions are inadequate. The claims file also includes treatment records from a private physician from October 2009 and an audiogram from a hearing institute from March 2010. The Veteran had an opportunity to and did submit additional evidence in support of his claims. Although he is receiving Social Security Administration (SSA) benefits, these benefits are not for a disability. VA is not required to obtain these SSA records, because they would not assist in substantiating his claim. See 38 U.S.C.A. §5103A; Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence. As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Alternatively, a nexus to service will be presumed where there is a current chronic disease with continuity of symptomatology since service, or with manifestation to a compensable degree within the first year after separation. See 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.307. However, continuity evidence without a medical nexus opinion can only support an award of service connection for chronic diseases under 38 C.F.R. § 3.309(a). see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In this regard, sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection as a chronic disease. See 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a); see also M21-1MR III.iv.4.B.12.a. Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385 (2013), which provides that service connection for impaired hearing shall be established when hearing status meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater, the auditory thresholds for at least three of these frequencies 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. For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. at 157. Nevertheless, the regulations do not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley 5 Vet. App. 155 (1993). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board has an obligation to provide reasons and bases supporting its decision; however, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board provide reasons for rejecting material evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 123-29 (2000). Therefore, the analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. First, the Veteran has current hearing loss and tinnitus disabilities. A private physician diagnosed bilateral, sensorineural hearing loss with associated tinnitus in October 2009. Further, the VA examiner in January 2010 confirmed the diagnosis of bilateral, sensorineural hearing loss and tinnitus. The audiometric findings satisfy the regulatory requirements for a hearing loss disability. See 38 C.F.R. § 3.385. Having established current disability, the Board will next consider whether there was an in-service injury or disease. In this regard, the Veteran worked as a radio operator during active service. He also asserts that he was exposed to noise while firing weapons without hearing protection. His separation examination dated in January 1962 reflects his reports of short-term hearing problems during service that subsequently cleared up. Audiometric testing at discharge revealed clinically normal hearing per Hensley. The Veteran's reported in-service noise exposure is consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). Accordingly, such in service noise exposure is established. In this case, the Veteran reported the onset of tinnitus as 8 to 10 years prior to the 2010 VA examination and the onset of hearing loss as over 15 years prior to the 2009 private examination, or almost 40 years after service. He is competent to report persistent and observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see Jandreau, 492 F.3d at 1377. Moreover, with respect to the hearing loss claim, evidence of continuity of symptomatology could enable a grant of service connection, even in the absence of a favorable nexus opinion. However, the Board does not find the Veteran credible as to his reported onset of symptoms hearing loss because such reports have been inconsistent. Specifically, the Veteran denied hearing loss in VA treatment records dated as late as 2003. Moreover, even if the Board were to accept that hearing loss had an onset in approximately 1994 (15 years before 2009) this fails to demonstrate continuity since the time of separation in 1962. For the above reasons, an award of service connection on the basis of continuity of hearing loss symptoms is not warranted here. Moreover, the weight of the competent medical evidence is against a finding that the currently diagnosed hearing loss and tinnitus is related to active service. Indeed, the January 2010 VA examiner concluded that the Veteran's hearing disabilities were less likely than not related to his in-service noise exposure. Specifically, it was reasoned that the separation examination showed no hearing loss, the Veteran's reports did not suggest onset during or immediately following service, and there is no scientific basis to support delayed onset hearing loss based on an Institute of Medicine study and findings. Specifically regarding onset, the Veteran had reported an 8-10 year history of tinnitus. A private October 2009 record had indicated a 15 year history of hearing loss. As the VA examiner's opinion was provided following a review of the record and evaluation of the Veteran, and as it was accompanied by a clear rationale, it is deemed highly probative. Moreover, no other competent medical evidence refutes this opinion. In this regard, an October 2009 statement from a private physician associated the Veteran's tinnitus to his hearing loss, but he did not comment on whether either disorder was etiologically related to the Veteran's service. The Veteran himself believes that his current hearing loss is related to service. However, he has no specialized knowledge to make him competent to speak on the complexities of the auditory or neurological systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In his substantive appeal, he contends that audio experts have concluded his type of noise exposure could lead to delayed onset hearing loss; he refers to "audio experts" generally, but not to any specific opinion or medical article. He has not presented any information on the source of this evidence- accordingly, the only competent medical evidence is the January 2010 VA examination discussed above, which found no causal relationship to service. Finally, as neither hearing loss or tinnitus have been shown to have manifested within the first post-service year, service connection on a presumptive basis is not for application. Again, the Veteran reported an onset of hearing loss in approximately 1994 and of tinnitus in approximately 2002. In sum, there is no support for an award of service connection for hearing loss or tinnitus. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine; however the preponderance of the evidence is against the claims and they must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs