Citation Nr: 1334980 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-21 036A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1959 to December 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from September and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2012, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge while sitting in Washington, DC. A transcript of the hearing has been associated with the claims file. In June 2013, the case was remanded to afford the Veteran a VA examination. Review of the record indicates substantial compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A hearing loss disability was not manifested in service, bilateral hearing loss was not manifested within one year after service, and a preponderance of the evidence is against a finding the Veteran's bilateral hearing loss is related to his service. 2. Tinnitus was not manifested in service and a preponderance of the evidence is against a finding that the Veteran's tinnitus is related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied via a letter sent to the appellant in October 2009. The duty to assist has also been satisfied. VA has obtained the appellant's service treatment records, VA medical records and private treatment records identified by the appellant as relevant to the appeal. The Veteran was also afforded a VA examination in August 2013. The VA examination is sufficient, as it considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to resolve the issues on appeal. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claims at this time. II. Service Connection The Veteran contends that his bilateral hearing loss and tinnitus began in service following military noise exposure. Generally, establishing service connection requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. 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). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the current appeal, the Veteran's DD 214 shows that he had service Navy with a military occupational specialty (MOS) of an ice-box-man for dairy and produce. The Veteran reported noise exposure during active duty when he was assigned to be a sight setter for the first mount on the ship and had to sit between two five-inch 38 guns. The Veteran also submitted buddy statements in support of his claim. Accordingly, the Board in its June 2013 remand conceded in-service acoustic trauma during service. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. III. History The Veteran's service treatment records (STRs) do not reveal any complaint of, or treatment for, bilateral hearing loss or tinnitus. The Veteran's entrance examination in January 1959 and separation examination in December 1962 both include normal whisper tests. During the July 2012 hearing, the Veteran reported that he sought treatment for hearing loss at Belltone around 1966. The Veteran reported that at that time he was told that he had a problem but could not afford hearing aids. The Veteran also reported that he was first diagnosed with bilateral hearing loss in 1999. Post-service private treatment records dated April 1999 from Dr. E.M.K. notes that the Veteran had a "history of progressive hearing loss for the past several years." The Veteran reported that he had a history of a lot of noise exposure; 20 years at Dow-Corning and 4 years in service. The Veteran indicated that he did not have tinnitus. Audiometric testing at that time revealed puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, of 25, 25, 25, 50 and 55 in the right ear, and 20, 35, 50, 65 and 65 in the left ear. A July 2001 opinion from Dr. E.M.K. states that, given the Veteran's history of noise exposure in and post-service, it would be difficult to determine how much hearing loss was from the Veteran's service. Dr. E.M.K. opined that it is "certainly feasible that a large proportion of [the Veteran's] hearing loss was from the military noise exposure." In January 2006, the Veteran participated in a clinical trial for an implantable hearing device in his right ear. An operative report dated January 2006 recorded a history of significant noise exposure at Down-Corning for 20 years and in service for 4 years. The Veteran denied having tinnitus. The operative report indicates that the Veteran had bilateral moderately severe sensorineural hearing loss with 76% speech discrimination in the right ear and 80% speech discrimination in the left ear. A three year follow-up audiogram revealed puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, of 30, 30, 30, 40 and 45 in the right ear, and 60, 65, 65, 75 and 80 in the left ear. A February 2011 letter from Dr. A.M.M. states "[i]t is suspected that [the Veteran's] high frequency hearing loss is likely consistent with unprotected hazardous noise exposure." At an August 2013 VA examination, audiometric testing revealed puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, of 105+, 105+, 105+, 105+ and 105+ in the right ear, and 50, 55, 55, 70 and 75 in the left ear. The Veteran's speech discrimination scores were 0% in his right ear and 76% in his left ear. The Veteran reported that his hearing loss impacted his ability to be a musician because he cannot hear music. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by his service. The examiner explained that the Veteran had 20 years of post-service noise exposure at Dow-Corning and that the first evidence of hearing loss was from April 1999, more than 40 years after separation from service. To support his opinion, the examiner cited to a 2006 Institute of Medicine report that concluded that hearing loss due to noise exposure "does not enjoy a delay in onset nor does it progress once the source of the noise has been discontinued." During the examination, the Veteran did not report recurrent tinnitus or that it had any impact on his daily life. The examiner noted that although the June 2013 remand instructions conceded that the Veteran experiences tinnitus, during his VA examination, the Veteran indicated that he did not have tinnitus. The examiner also noted that the Veteran denied having tinnitus in his April 1999 audiology examination. After a review of the Veteran's buddy statements, the examiner opined that the Veteran's tinnitus had onset after 1999 and that it is more likely that his tinnitus is related to his post-service noise exposure. The examiner explained that the Veteran's noise exposure in service occurred more than 40 years before onset of tinnitus and that the Veteran had post-service noise exposure. IV. Bilateral Hearing Loss The evidence of record supports a finding that the Veteran has a current bilateral hearing disability and the Veteran's in-service noise exposure has been conceded. Having determined that the Veteran has a current disability and that he sustained an injury in service, the final question before the Board is whether the Veteran's current bilateral hearing loss disability is related to his in-service noise exposure. Initially, the Veteran is not entitled to service connection for bilateral hearing loss on a presumptive basis because his hearing loss disability first manifested several years after his separation from service. Service connection for hearing loss will rebuttably be presumed if it is manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a); M21-1MR III.iv.4.B.12.a. Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). With regard to the Veteran's assertions that his bilateral hearing loss began in service and has continued since service, the Board finds that, while the Veteran is competent to report the onset of his hearing loss, his recent report of continuous symptoms since service is outweighed by the other, more contemporaneous evidence of record. Charles v. Principi, 16 Vet. App. 370 (2002). The evidence of record includes the absence of an in-service diagnosis or notation of complaints of hearing loss; the December 1962 separation examination that indicated that the Veteran scored a 15 out of 15 on the whispered voice test and did not note any history or findings of ear problems; and the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of hearing loss or tinnitus for approximately 37 years after service. The Board acknowledges that the Veteran reported seeking treatment around 1966. However, even assuming that the Veteran was diagnosed with hearing loss in 1966, the Veteran would have received this diagnosis after the one-year presumption period that followed his discharge in 1962. In addition, in a private audiological examination dated April 1999, the Veteran reported a history of progressive hearing loss over the "past several years." As the Veteran's hearing loss did not manifest to a compensable degree within the year after his separation from service, he is not entitled to service connection on a presumptive basis. The Board next considers whether the Veteran is entitled to service connection on a direct basis. As mentioned above, the Veteran's service treatment records do not document any reports of any ear issues. The Veteran's entrance examination in January 1959 and separation examination in December 1962 both include normal whisper tests. This evidence tends to show that the Veteran's hearing loss disability did not have its onset during his active service. After separation from service, the Veteran worked for Dow-Corning for 20 years. At his April 1999 audiology exam and January 2006 hearing-implant operation, the Veteran reported noise exposure from his work at Dow-Corning for 20 years and in-service for 4 years. In a September 2013 statement, the Veteran alleged he did not have noise exposure while employed at Dow-Corning. While the Veteran is competent to report whether he had noise exposure at Dow-Corning, the Board finds that his September 2013 statement is not credible given the Veteran's prior consistent reports of noise exposure in April 1999 and January 2006. The Board finds that the Veteran had noise exposure for 20 years while employed at Dow-Corning. The Veteran contends that the opinions from Dr. E.M.K. and Dr. A.M.M. show that it is more likely than not that his hearing loss resulted from his in-service noise exposure from 5" guns. However, the opinion from Dr. E.M.K. states that while it is feasible that a large portion of the Veteran's hearing loss can be attributed to his in-service noise exposure, given the Veteran's noise exposure in-service and post service, it would be difficult to determine how much of the Veteran's hearing loss was from the Veteran's in-service noise exposure. Similarly, the opinion from Dr. A.M.M. states that it is suspected the Veteran's hearing loss is consistent with unprotected hazardous noise exposure. Neither opinion states that the Veteran's hearing loss is more likely than not related to his in-service noise exposure. The only opinion that addresses whether the Veteran's hearing loss is related to or a result of his noise exposure while in service is the August 2013 VA examiner. The VA examiner stated based on the objective testing of record in this case, the Veteran's history of noise exposure and the examiner's medical knowledge and experience; that the Veteran's hearing loss is not related to in-service noise exposure. The Board finds the examiner's opinion is entitled to great probative weight as it is based on an adequate examination and consideration of the full history of the disorder. 38 C.F.R. § 3.303(b). In addition, the VA examiner cited medical research in support of the opinion. The Veteran has also offered his own opinion on the etiology of his hearing loss. The Board finds that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. Therefore, the Veteran's lay opinion could be sufficient to serve as the required nexus for his claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the record reflects that the Veteran was first diagnosed with bilateral hearing loss in April 1999, approximately 37 years after his separation from service. In such a circumstance, other potential causes of his hearing loss must be considered. Significantly, determining the precise etiology of the Veteran's hearing loss is not a simple question, as there are multiple potential etiologies of the Veteran's hearing loss. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Board has considered the Veteran's service treatment records, including his separation examination, which did not include a diagnosis of hearing loss, and the absence of complaints of or treatment for hearing loss for decades following service and finds the weight of the evidence is against the claim; there is no doubt to be resolved. The best medical opinion of record regarding nexus is negative; while the Veteran has expressed his belief that there is a nexus between service and current disability, he is not competent to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is not a situation of an observable cause and effect relationship as he asserts that he has hearing loss, diagnosed many years after service, that is associated with noise exposure in service. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board finds that while the Veteran was exposed to excessive noise in service, the weight of the evidence is against the claim of service connection for bilateral hearing loss. V. Tinnitus Similarly, the weight of the evidence is against service connection for tinnitus. Service treatment records show no in-service diagnosis or complaints of tinnitus and there is no post-service documented evidence of complaints. In his April 1999 audiology exam and at his January 2006 hearing implant operation, the Veteran indicated that he did not experience tinnitus. Similarly, at the August 2013 VA examination, the Veteran indicated that he did not experience tinnitus. The sole evidence in support of the Veteran's tinnitus claim is the Veteran's September 2013 lay statement that tinnitus began in service. However, this allegation lacks credibility, because the Veteran stated that he did not suffer from tinnitus at his April 1999, January 2006, and August 2013 audiology appointments. The Veteran's September 2013 statement can therefore be given little or no probative weight. As the June 2013 remand instructions conceded that the Veteran currently experiences tinnitus, the August 2013 VA examiner reviewed the Veteran's buddy statements and opined that the Veteran's tinnitus onset after April 1999. The examiner opined that the Veteran's tinnitus is more likely related to his post-service noise exposure because the Veteran's in-service noise exposure occurred nearly 40 years before onset of tinnitus and the Veteran had post-service noise exposure. The Board finds the August 2013 VA audiological opinion persuasive, as it was based on thorough examination of the Veteran and included detailed discussions of all relevant facts. The examiner offered rational and plausible explanation for concluding that the Veteran's current tinnitus was not related to service. As there is no competent, probative evidence of record suggesting a connection between the Veteran's current tinnitus and service, and no objective evidence of any complaints or manifestations of tinnitus until nearly 37 years after his discharge from service, the record affords no basis to grant service connection. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for tinnitus. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs