Citation Nr: 1335055 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-19 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1961 to August 1962. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2013 the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Board notes the Veteran's file in the "Virtual VA" system includes VA treatment records which were not previously considered by the RO. Specifically, the most recent Statement of the Case from April 2010 considered VA treatment records through March 2010, while the records on Virtual VA are through November 2011. However, the Board has reviewed the updated VA treatment records from March 2010 through November 2011 and found they are not relevant to the claims on appeal. Therefore the Board finds there is no prejudice to the Veteran by the Board's continued adjudication of the issues on appeal. 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. The evidence does not establish the Veteran's current bilateral hearing loss began during, or was otherwise caused by, his active military service. 2. The evidence establishes the Veteran's bilateral tinnitus began during and has continued since his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for hearing loss and tinnitus. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). As a threshold matter, the Board concedes the Veteran was exposed to very loud noise during his military service, including exposure to rifle fire. 38 U.S.C.A. § 1154(a). However, military noise exposure alone is not sufficient to establish service connection. Instead, the military noise exposure must cause a current hearing loss disability and/or tinnitus. Under the regulations hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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 Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service treatment records were reviewed but fail to establish the Veteran made any complaint of, or sought any treatment for, any hearing loss, ringing, or buzzing in his ears during his military service. Audiometric testing was conducted once in September 1961, shortly before the Veteran joined active military service. The relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 -- -5 LEFT 0 0 -5 -- 0 The Board finds these results reflect the Veteran had normal hearing acuity at entrance to active military service. During his active service whispered voice testing was performed in June and June 1962, shortly before separation, and each revealed normal hearing bilaterally. Therefore the Board finds the evidence suggests the Veteran continued to have normal hearing throughout his military service. However, the Court has held that even if the audiometric testing results at the Veteran's separation from service do not meet the regulatory requirements for establishing a disability at the time, he is not precluding from establish service connection for a current hearing disability. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Post-service treatment records have been reviewed and, as will be discussed, reveal the Veteran currently has a hearing loss disability. However, the Board notes that although the Veteran has consistently related his current hearing loss to noise exposure during his military service, the Veteran has also consistently reported that his right ear hearing loss began suddenly in approximately 2006, providing evidence against his claim. For example, in a written statement received September 2009 the Veteran reported he suffered a sudden hearing loss in September 2006. As will be discussed, the Veteran's lay assertions are supported by the medical evidence of record. In September 2009 the Veteran sought treatment from a VA medical facility for hearing loss. He reported a sudden hearing loss in his right ear four to five years earlier, or in approximately 2004-2005. The Veteran also reported experiencing bilateral constant buzzing "for years." Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 65 70 80 LEFT 10 15 10 40 45 Accordingly the Board finds the Veteran currently has a hearing loss disability in both ears for VA purposes. However, establishing a current disability is not sufficient to establish service connection. Rather the current disability must be caused by the military noise exposure. The Board finds this record does not include any medical opinion regarding the cause of the Veteran's current hearing loss disability. The Veteran has also submitted treatment records from three different private audiologists. The audiometric testing performed by each of these private physicians again reflected the Veteran currently has a hearing loss disability for VA purposes. Several forms of treatment were attempted, including steroid treatment; however the Veteran's hearing acuity did not perceptibly improve. Each of these private physicians also noted the Veteran reported a sudden onset of hearing loss in approximately 2006, without any apparent trauma to the ear. However, none of these private physicians opined the Veteran's current hearing loss disability may be related to his military service. In November 2009 the Veteran was provided with a VA examination to evaluate the nature and severity of his current bilateral hearing loss and tinnitus. The examiner noted the Veteran's history consistent with the record, including the sudden hearing loss in 2006. The examiner conducted audiometric testing and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 70 75 75 LEFT 20 15 15 40 45 The Board finds these results again establish the Veteran currently had a bilateral hearing loss disability, worse in his right ear. The examiner also noted the Veteran currently had tinnitus which began during his military service. However, the examiner opined the Veteran's sudden hearing loss in his right ear in 2006 was "unrelated to military service." The examiner then opined the Veteran's bilateral hearing loss and tinnitus were less likely as not caused by or the result of the Veteran's military noise exposure, providing evidence against the Veteran's claim. Regarding the Veteran's claim for service connection for bilateral hearing loss the Board finds the evidence does not establish the Veteran's current bilateral hearing loss disability began during, or was otherwise caused by, his active military service. As discussed above, the Veteran had normal hearing acuity throughout his period of active military service. Post-service treatment records reflect the Veteran has bilateral hearing loss which onset suddenly in 2006, nearly forty-five years after his separation from active military service. The VA examiner opined the Veteran's current hearing loss disability was not due to his military service, and the evidence does not contain any additional medical opinion suggesting otherwise. Therefore because the evidence does not establish the Veteran's current disability is due to his active military service, the Veteran's claim for service connection for bilateral hearing loss is denied. Regarding the Veteran's claim for service connection for tinnitus, however, the Board finds all elements of service connection are met. The VA examiner opined the Veteran currently had bilateral tinnitus which began during his military service. In addition, the Veteran has consistently stated that he began experiencing a ringing in his ears during his military service which has continued ever since and increased in severity. Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Board finds the Veteran's consistent lay testimony and the findings of the VA examiner establish the Veteran's current bilateral tinnitus began during and has continued since his active military service. Accordingly, his claim for service connection for tinnitus is granted. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in September 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). VA and private treatment records have been obtained, as have service treatment records. In August 2013 the Veteran was provided with a hearing before the undersigned Veterans Law Judge (VLJ). In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed hearing loss and tinnitus, specifically regarding when each condition began. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with a VA examination, the report of which has been associated with the claims file. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for service connection for bilateral hearing loss is denied. The claim for service connection for bilateral tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs