Citation Nr: 1335102 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-07 641 ) 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 ATTORNEY FOR THE BOARD R. Hagen, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have onset during active service, did not manifest within one year of separation from active service, and is not etiologically related to active service. 2. The Veteran's tinnitus did not have onset during service, did not manifest within one year of separation from active service, and is not etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a), 3.385 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided adequate notice in a letter sent to the Veteran in January 2011, prior to the initial adjudication of his claim by the RO. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service and VA treatment records and service medical records. VA provided the Veteran an adequate audiology examination of his claimed hearing loss in April 2011. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Neither the Veteran nor his representative has identified, 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. Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection 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. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a service connection, 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Moreover, in the case of sensorineural hearing loss and tinnitus, as organic disease of the nervous system, service connection shall be presumed if sensorineural hearing loss or tinnitus is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). For 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 of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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 (2013). While on active duty, the Veteran's military occupational specialty (MOS) was as a general vehicle mechanic. That MOS has a high probability of exposure to acoustic trauma. The Veteran was given audiometric examinations upon induction, separation, and after service. Some of the Veteran's audiological examinations include negative values and do not indicate what measurement unit was used during the examination. The examinations were all performed after November 1, 1967, the date the United States military switched to recording test results in International Standard Organization (ISO) units from American Standards Association (ASA) units. Therefore, the results are presumed to have been recorded in ISO units. The Veteran's February 1968 entrance examination found that the Veteran's ears were "normal," but includes a note there was an impairment of hearing. The Veteran declared in that examination that he had never had hearing loss or ear trouble. The Veteran's audiological evaluation found pure tone thresholds, in decibels, as follows: February 1968 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right -5 -5 15 X 5 Left 10 20 15 X 15 The service medical records during the Veteran's service are negative for bilateral hearing loss and tinnitus. The Veteran's November 1969 separation examination noted that his ears were "normal" with no additional remarks. The Veteran declared in that examination that he did not have hearing loss, but he did note that he had ear, nose, or throat trouble. The Veteran's audiological evaluation found pure tone thresholds, in decibels, as follows: November 1969 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 0 10 X 0 Left 15 0 5 X 0 More recently, the Veteran was provided a VA examination in April 2011 to evaluate his claim for service connection for bilateral hearing loss and tinnitus. The Veteran's audiological evaluation found pure tone thresholds, in decibels, as follows: April 2011 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 25 35 45 50 50 Left 25 30 35 50 50 The examiner's opinion discussed the Veteran's service and work history in detail. Particularly, the Veteran was a manager at an automobile dealership for 31 years without hearing protection and the owner of a car repair facility for 10 years without hearing protection. Moreover, the examiner considered the Veteran's induction examination and separation examination and other records. The examiner also considered the Veteran's post-service occupation in the automotive repair industry. The opinion took into account the Veteran's statements that his family had noticed his hearing loss since the 1970s, and that he often had to turn the volume up on the radio and television to hear. The Veteran himself stated he does not know for sure, but that the tinnitus might have started 30 years ago. The examiner explained that the Veteran reported his tinnitus sounded like a ringing in his ears. Further, the examiner found that the Veteran's tinnitus was recurrent or intermittent, and that the Veteran was not sure how often it happened or when the last occurrence was. The examiner diagnosed bilateral moderate notching sensorineural hearing loss and tinnitus. In the examiner's opinion, because the Veteran's separation examination showed normal hearing, and taking into account the Veteran's post-service occupation in the automotive repair industry, the Veteran's hearing loss was not at least as likely as not the result of military noise exposure. The examiner also opined that the Veteran's tinnitus occurred so infrequently that the Veteran could not recall when the last incident occurred and it was therefore found not to be caused by, or the result of, his military noise exposure. The examiner's opinion is that the Veteran's tinnitus claim was not related to service because of his normal separation examination, his post-service occupation in automotive repair, and the infrequency of his symptoms. The April 2011 examination report is evidence against the Veteran's claim because it tends to show that there is no nexus for the Veteran's bilateral hearing loss and tinnitus claims. The Board has considered the Veteran's March 2012 statements that: (1) he did not receive a hearing examination during his separation examination; and (2) the examiner did not take into account that the Veteran's post-service occupation was managerial, away from noise, and in a generally quieter environment. With regard to the Veteran's first statement, a report of medical examination from November 1969 is associated with the claims file. In it, there are recorded audiometric examination results. The examiner noted the Veteran's ears were normal. In a November 1969 separation report of medical history, the Veteran endorsed that he had ear, nose, or throat trouble, but did not elaborate or specify which body part he had problems with. On that same form, the Veteran indicated he did not have, nor had he ever had, hearing loss. Because there are audiometric values associated with the Veteran's separation examination, the Board concludes that a relevant separation examination was conducted. The examiner's April 2011 opinion was supported by sufficient facts, appears to have reliably applied reliable medical principles to those facts, and adequately supports the determination with a logical and detailed rationale. Those are the factors, particularly the reasoning employed, that are applicable to determining the probative value of a medical opinion, which, in this case, is an opinion as to whether the Veteran's hearing loss or tinnitus is related to his active service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). With regard to the Veteran's second statement, the examiner took into account that the Veteran was employed as a manager and owner in the automotive repair industry. The examiner inquired as to the Veteran's post-service experience and indicated the different positions the Veteran has occupied. From the level of detail explained in the examiner's report, it appears that the examiner considered the varying amounts of noise the Veteran would have been exposed to after service. The examiner's opinion is therefore given high probative value by the Board. Also considered by the Board is the Veteran's opinion that his hearing loss is due to noise exposure during service, as opposed to working in automotive repair after service, even as a manager. The Veteran has not provided any evidence showing expertise in medical matters. He is therefore considered a layperson, or non-expert, as to medical matters. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). One example of this is that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is also well-established that non-expert witnesses are competent to report that which is within a non-expert's realm of knowledge, such as things observed with the senses of the witness. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. The Board finds that whether noise exposure from the Veteran's service caused his bilateral hearing loss and tinnitus, particularly in light of his MOS, is not within the realm of knowledge of a layperson. It is not a conclusion that can be reached by observation by one's senses because it would be impossible to determine by personal observation if the in-service noise exposure, as opposed to his later exposure to repair shop noise, caused the symptoms. Nor is it a simple question such as whether someone had a broken leg. There are different types and causes of hearing loss, and the Veteran is not shown to be competent to distinguish between the types and the causes. Therefore, the Board finds that the Veteran's opinion regarding etiology is not competent evidence. The preponderance of the evidence establishes that the Veteran had normal hearing upon separation, and there is no record of bilateral hearing loss within one year of separation. The Board finds that his bilateral hearing loss did not manifest during an applicable presumptive period and presumptive service connection is not warranted. Accordingly, the Board finds that the preponderance of evidence is against a finding that the Veteran's bilateral hearing loss and tinnitus had onset in or were caused by active service. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs