Citation Nr: 1335053 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-45 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from November 1963 to November 1965. The case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri, that denied his claims of service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. The Veteran does not have hearing impairment in the right ear as defined by VA. 2. The Veteran's left ear hearing loss is attributable to his active military service. 3. Resolving all doubt in the Veteran's favor, tinnitus had its clinical onset in service. CONCLUSIONS OF LAW 1. The Veteran does not have right hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The Veteran has left ear hearing loss that is the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 3. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification prior to the initial unfavorable agency decision through a notice letter dated September 2009. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (West 2012 & Supp. 2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Service treatment records are associated with the claims file. To date, no further records outside the claims file have been identified by the Veteran. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded two VA examinations for his bilateral hearing loss. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds these examinations are adequate for the purposes of the evaluating the Veteran's hearing loss and tinnitus, as both involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Merits Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. Certain chronic disabilities are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The Board will next discuss each of the Veteran's contentions of entitlement for service connection, in turn, below. A. Service Connection for Right Ear Hearing Loss 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 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 (2012). A review of the evidence of record reveals that the Veteran does not possess right ear hearing loss for VA purposes. The record contains the results of three audiograms undergone by the Veteran, none of which show that the Veteran has right ear hearing loss for VA purposes. The first occurred at his December 2009 VA examination, which showed pure tone thresholds, in decibels, as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 5 15 10 20 25 The December 2009 audiogram also revealed speech recognition score of 98 for the right ear as a result of the Maryland CNC Test. None of the pure tone thresholds were 40 decibels or greater. Nor were at least three pure tone thresholds greater than 26 decibels. Finally, the Veteran's speech recognition score was not less than 94 percent as a result of the Maryland CNC Test. As such, for VA purposes, the Veteran did not possess right ear hearing loss at the December 2009 VA examination. See 38 C.F.R. § 3.385(2012). The Veteran then underwent a private audiogram in November 2010, which showed pure tone thresholds, in decibels, as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 10 10 15 25 30 The November 2010 audiogram also included "speech discrimination in quiet" test results, which indicated a score of 100 percent for the right ear. None of the pure tone thresholds were 40 decibels or greater. Nor were at least three pure tone thresholds greater than 26 decibels. Finally, assuming that the "speech discrimination in quiet" test was the Maryland CNC Test, the results of that test did not reveal a score of less than 94 percent. As such, for VA purposes, the Veteran did not possess right ear hearing loss at the November 2010 private audiogram. See 38 C.F.R. § 3.385(2012). The Veteran finally underwent a third audiogram at his March 2013 VA examination, which showed pure tone thresholds, in decibels, as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 15 25 25 35 35 The March 2013 audiogram also revealed speech recognition score of 96 for the right ear as a result of the Maryland CNC Test. None of the pure tone thresholds were 40 decibels or greater. Nor were at least three pure tone thresholds greater than 26 decibels. Finally, the Veteran's speech recognition score was not less than 94 percent as a result of the Maryland CNC Test. As such, for VA purposes, the Veteran did not possess right ear hearing loss at the March 2013 examination. See 38 C.F.R. § 3.385 (2012). The Board acknowledges the Veteran's assertions that he was exposed to noise during his active duty. However, in this instance, the existence of a disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In other words, the evidence must show that the Veteran currently has, or has had at some point during the current claim, the disability for which benefits are being sought. Here, there is no competent medical evidence reflective of right ear hearing impairment as defined under VA regulation 38 C.F.R. § 3.385 at any time during the current claim. Accordingly, the preponderance of the evidence is against this service connection claim. The benefit-of-the-doubt rule does not help, and the Veteran's claim for service connection for right ear hearing loss is denied. See 38 U.S.C.A. § 5107. B. Service Connection for Left Ear Hearing Loss In terms of left ear hearing impairment, the Veteran does suffer left ear hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. See March 2013 VA Examination Report; November 2010 Private Audiology Report; December 2009 VA Examination Report. Additionally, the Veteran claims that he was exposed to noise as a result of his basic training, his proximity to an artillery unit that fired frequently and his use of weapons during qualifying. See March 2010 Notice of Disagreement; December 2009 VA Examination Report. A review of the Veteran's DD-214 reveals that the Veteran was awarded citations that included proficiency as an expert on the carbine and as a sharpshooter on the rifle. The Board thus determines that noise exposure is reasonably consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a). Given that the Veteran has left ear hearing loss for VA purposes and he was exposed to noise during his active service, the question is one of nexus. In November 1965, the Veteran completed his separation medical examination. As part of that examination, the Veteran was afforded an audiogram. Prior to November 1967, audiometric results were recorded by the military in the standards set forth by the American Standards Association (ASA). The laws applied by VA, however, utilize the audiometric standards prescribed by the International Standards Organization (ISO). To facilitate data comparison, those results recorded by the military have been converted to ISO units. The November 1965 pure tone threshold results, in decibels, were: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Left Ear 15 10 10 -- 5 That audiogram shows no evidence of hearing loss at separation from active service. See 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 157 (1993). There is also no evidence in the Veteran's service records of any complaints of left ear hearing difficulty during service. Further, the Veteran's ears and drums were noted as normal upon his clinical evaluation at separation. See November 1965 Report of Medical Examination. In light of such evidence, the Board finds that no left hearing loss disability for VA purposes manifested during active service. The Board has also considered whether service connection is warranted based on a showing of continuity of symptomatology. A review of the evidence of record reveals that nowhere does the Veteran assert that he has experienced the symptoms associated with left ear hearing loss since service. Moreover, a review of the evidence also shows no evidence that the Veteran experienced the symptoms of left ear hearing loss until his claim was filed May 2005, some 44 years after the Veteran left active service. This lapse in time between service and the first manifestations of hearing loss weighs against the Veteran's claim. 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 malady 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). As such, the Board finds there is no evidence as to the onset of the Veteran's left ear hearing loss and service connection based on continuity of symptomatology is not applicable here. In addition, as no left ear hearing loss for VA purposes is shown within one year of service discharge, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309(a). The Veteran obtained the opinion of a private audiologist in November 2010. That audiologist opined that it was more likely than not that the Veteran's left ear hearing loss was related to his active service, noting that the Veteran earned a sharpshooter badge while in service. She stated that despite normal audiograms during service, "it is documented in the histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual ever a threshold shift on an audiogram, therefore it is more likely than not that [the Veteran's]...hearing loss is related to his military noise exposure...." The audiologist based her opinion on "case history [and] configuration of hearing loss." The private audiologist did concede that the Veteran's left ear hearing loss may have worsened as a civilian. On the other hand, both the December 2009 and March 2013 VA examiners opined that the Veteran's left ear hearing loss was not related to his service. The December 2009 examiner based her conclusion on the fact that the Veteran possessed normal auditory thresholds bilaterally at separation and that the Veteran currently possesses normal hearing in his right ear. The December 2009 examiner elaborated that if the Veteran's hearing loss was etiologically related to service, the Veteran would possess impairment in both ears. The March 2013 examiner supported his opinion by noting the Veteran had normal hearing bilaterally at entrance and separation. The examiner also discussed the lack of a significant threshold shift in hearing from entrance to separation. He finally discussed the possibility that the Veteran's left ear hearing loss was caused by his occupational noise exposure and the effects of aging. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 17 (1991). In this instance, the Board finds the evidence of the Veteran's left ear hearing loss being etiologically related to his service to be in at least equipoise with the evidence against that etiological link. Specifically, the report of the private audiologist, based on the histopathology literature that outer hair cell damage occurs prior to a threshold shift in an audiogram is not rebutted by any other piece of evidence. Indeed, both VA audiological opinions rely on the lack of any hearing loss documented during service, and the lack of a significant threshold shift from entrance to separation. Those rationales can be explained by the private audiologist's assertion that outer hair cell damage occurs prior to a threshold shift. Neither VA examiner commented on the private audiologist's rationale. Moreover, while the December 2009 VA examiner stated that if the Veteran's left ear hearing loss was related to service, he would display right ear hearing loss too, the examiner did not explain the significance of possessing only left ear hearing loss. Moreover, that rationale is belied by the fact that the March 2013 VA examiner diagnosed sensorineural hearing loss in both ears. Despite the fact that the Veteran does not possess right ear hearing loss for VA purposes, see 38 U.S.C.A. § 5107, the March 2013 VA examination report nonetheless reveals some impaired hearing in the Veteran's right ear. The Board finds that the evidence preponderates in favor of the Veteran's left ear hearing loss being causally related to service, or the evidence is at least in equipoise. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.303. C. Service Connection for Tinnitus The Veteran also claims service connection for tinnitus. Specifically, the Veteran asserts that he first experienced ringing in his ears while in basic training. See November 2010 Statement of Veteran. The Veteran is competent to provide a lay diagnosis of his tinnitus as it is a condition capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Indeed, the Veteran's repeated assertion of ringing in his ears is sufficient to establish that he suffers from tinnitus. See November 2010 Private Audiological Opinion; March 2013 VA Examination Report. Additionally, as discussed above, the Veteran's exposure to noise is conceded in this case. Consequently, service connection in this case hinges on whether there is some etiological link between the Veteran's tinnitus and his active service. As a result of his March 2013 VA examination, the examiner concluded that the Veteran's tinnitus was less likely than not related to military noise exposure. As rationale for that opinion, the examiner explained that there was no record of tinnitus in the Veteran's STRs. Further, the examiner stressed that the Veteran's audiometric configuration at separation was not consistent with military trauma and the Veteran was not actively involved in a combat arena, which would expose the Veteran to significant acoustic trauma. Similarly, as a result of the Veteran's December 2009 VA examination, that examiner concluded that the Veteran's tinnitus is not caused by or a result of acoustic trauma. That examiner explained that the Veteran's claim of tinnitus was not time locked to his active service. This is presumably because, according to the examiner, the Veteran reported only experiencing ringing in his ears for the past 25-30 years. Additionally, the examiner explained that the Veteran's "excellent hearing" at separation indicated an absence of cochlear impairment. As discussed above, the Veteran submitted to a private audiological examination in November 2010. Similar to the Veteran's left ear hearing loss, the private audiologist concluded that "it is documented in the histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual ever a threshold shift on an audiogram, therefore it is more likely than not that [the Veteran's]...tinnitus is related to his military noise exposure...." That opinion was based on case history and the Veteran's report of the onset of his tinnitus. While service connection for tinnitus may not be established based on a continuity of symptomatology as it is not a chronic disease specified under 38 C.F.R. § 3.309(a), the Veteran is competent to render a diagnosis of tinnitus. The Veteran has asserted that he began experiencing ringing in his ears during basic training. See November 2010 Statement of Veteran; March 2010 Notice of Disagreement. As such, the Veteran has provided competent testimony that he began experiencing ringing in his ears during basic training. The Board also finds the Veteran's report that he began experiencing tinnitus at that time credible. There is, however, an apparently contradictory report made by the Veteran regarding the onset of his tinnitus at his December 2009 VA examination. There, according to the exam report, the Veteran asserted that his tinnitus began occurring some 25 to 30 years prior, which was after his period of active service, and that he could not recall the acoustic event that gave rise to his tinnitus. See December 2009 VA Examination Report. After that examination, the Veteran twice clarified that either his statement to the examiner was misinterpreted or that the Veteran was not as clear as he could have been. The Veteran stated that he was telling the examiner that learned that the ringing in his ears had a medical name, tinnitus. See November 2010 Statement of Veteran; March 2010 Notice of Disagreement. He learned this fact 25 to 30 years earlier by reading about the condition in a health foods magazine. Id. The Veteran clarified that he noticed ringing in his ears during basic training, not 25 to 30 years before his December 2009 VA examination. The Veteran again asserted the onset of his tinnitus as occurring during basic training at his March 2013 VA examination. Given the Veteran's clarification of the December 2009 VA examination report and otherwise consistent report of ringing in his ears since basic training, the Board finds his statements regarding the onset of that condition credible. There is no otherwise contradictory evidence that the Veteran's tinnitus did not begin in service. The March 2013 VA examiner's rationale that the Veteran's tinnitus is not related to his service does not challenge the Veteran's assertion that ringing in his ears began during service. Instead, the examiner relies upon a lack of evidence of tinnitus in the Veteran's STRs, the Veteran's audiometric results upon separation and the fact that the Veteran was not engaged in combat. The rationale, however, does not challenge the Veteran's claim that ringing began during service. Moreover, the December 2009 examiner relied upon the misconstrued (or misspoken) statement regarding the Veteran's onset of ringing in his ears. The examiner did not otherwise challenge the Veteran's assertion that ringing in his ears began during service. For the reasons discussed above, the Board finds the evidence is at least in equipoise regarding the in-service incurrence of the Veteran's current tinnitus. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for recurrent tinnitus is warranted. His credible statements regarding the onset of his tinnitus, and lack of contradictory evidence of record, are sufficient to establish the in-service onset of tinnitus. ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs