Citation Nr: 1335360	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  11-32 562	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

R. Sauter, Associate Counsel




INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from September 1968 to June 1970.

The Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa initially denied the Veteran's service connection claims for hearing loss and tinnitus in an October 2007 rating decision, after the Veteran did not report to his scheduled examination.  The RO then decided to reconsider the claim, upon receiving the Veteran's request that the RO reschedule the examination and provide adequate notice of the date of the examination.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the RO, which again denied the Veteran's service connection claims.  


FINDINGS OF FACT

1.  The competent medical evidence does not establish the presence of bilateral hearing loss recognized as a disability for VA purposes.

2.  The Veteran has currently diagnosed tinnitus.

3.  The Veteran was exposed to loud noises (acoustic trauma) in service.

4.  Resolving reasonable doubt in the Veteran's favor, his tinnitus is related to acoustic trauma during service.





CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are not met.            38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A.       §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A.          § 5103(a); 38 C.F.R. § 3.159(b).

In this case, the VCAA duty to notify initially was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in March 2007.  This letter informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence, including advising him of how disability ratings and effective dates are assigned.  Thus, the Veteran has received all required notice concerning the claim.

VA also has a duty to assist a veteran in the development of a claim.  This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim.  38 U.S.C.A. § 5103A;   38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished.  The claims file contains the Veteran's STRs, VA and private medical treatment evidence, and the Veteran's statements. 

The Veteran underwent a VA audiology examination in March 2008 to ascertain the nature and etiology of any currently diagnosed hearing loss and tinnitus.                38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson,       20 Vet. App. 79 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The March 2008 VA examination is adequate because it was performed by a medical professional, and was based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran.  Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  VA's duties to notify and assist with this claim have been satisfied.

Service Connection Legal Authority

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A.         § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service.  38 C.F.R.          § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer v. Derwinski,    3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).  The most fundamental requirement for any claim for service connection is current disability.  See Degmetich v. Brown, 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).  

In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be show, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

The Veteran's claimed bilateral hearing loss is an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); however, as discussed below, the Veteran does not meet the criteria for VA compensation purposes.  Therefore, 38 C.F.R. § 3.303(b) does not apply.  

Tinnitus is not a chronic disease listed under 38 C.F.R. § 3.309(a); thus, the presumptive service connection provisions at 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service and "continuous" symptoms since service do not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  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, 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.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board must assess the credibility and weight of evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Analysis of Service Connection Claim for Hearing Loss

The Veteran asserts that he has hearing loss as a result of acoustic trauma in service.  The evidence shows that he served on an aircraft carrier in 1969.  He states that he was exposed to noise from jet engines, flight deck operations, catapults, slingshots, grinders, chippers, and pneumatic tools.  In addition, the Veteran was on the flight deck when the aircraft carrier caught fire after a rocket blew up, setting off a chain reaction of explosions.  The Veteran contends in his February 2007 claim that his hearing loss began in 1969.  

The Veteran's lay statements regarding acoustic trauma are competent and credible.  Resolving reasonable doubt in favor of the Veteran, the Board finds that he was exposed to the reported acoustic trauma in service.  

The Veteran does not have a currently diagnosed bilateral hearing loss disability for VA compensation purposes.  The Veteran was afforded a March 2008 VA audiology examination.  He reported difficulty hearing his spouse and understanding people on the telephone.  Puretone thresholds, measured in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
5
15
35
LEFT
20
10
10
15
35

The VA examiner noted that the Veteran has normal hearing from 250-3000 Hertz, and mild to moderate hearing loss from 4000-8000 Hertz.  The VA examiner noted that the Veteran's hearing was evaluated at his separation from service examination using only a whispered voice test.  The whispered voice test is not valid for VA purposes, because it is not ear or frequency specified, and is not calibrated.  The VA examiner concluded that the Veteran's hearing loss is at least as likely as not caused by or a result of the acoustic trauma he experienced in service.

The clinical results reported do not meet the requirements for a hearing loss disability in either ear, as set out in VA regulations at 38 C.F.R. § 3.385. Specifically, none of the thresholds in any of the frequencies between 500 and 4000 Hertz is 40 decibels or greater; there are not at least three frequencies between 500 and 4000 Hertz that are 26 decibels or greater; and, speech recognition scores are not less than 94. 

Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A.     § 1110.  In this case, where the evidence shows no current hearing loss disability (see 38 C.F.R. § 3.385) upon which to predicate a grant of service connection at any time during the claim period, there can be no valid claim for that benefit.  See Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. 223, 225. 

The Veteran is competent to report symptoms of hearing loss that he may have experienced at any time.  See Layno, 6 Vet. App. 465, 470.  As a layperson, however, he is not competent to diagnose a bilateral hearing loss disability, because hearing loss is identified by objective and specific audiometric and speech recognition testing.  Jandreau, 492 F.3d 1372, 1377.

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107;          38 C.F.R. § 3.102.

Analysis of Service Connection Claim for Tinnitus

The Veteran asserts that he has tinnitus as a result of the acoustic trauma in service.  He contends that his tinnitus began in 1969 while in service, and that he sought treatment several years after discharge and was diagnosed with tinnitus sometime in the late 1970's.  

As noted above, the Board finds the Veteran's reports of acoustic trauma to be competent and credible.    

The Board finds that the Veteran has currently diagnosed tinnitus.  He, as a layperson, is competent to describe observable symptoms such as ringing in the ears.  See Jandreau at 1376-77; Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service).  The Board finds his lay accounts to be credible.  See Madden, 125 F.3d 1477, 1481 (holding that the Board has the duty to assess the credibility and weight to be given to the evidence).  

The March 2008 VA examiner noted that the Veteran's tinnitus had its onset in the late 1970's or early 1980's, but did not acknowledge the Veteran's assertion that his tinnitus began in 1969, during his military service.  The VA examiner concluded that it is less likely than not that the Veteran's tinnitus is related to service, because it had its onset several years after service. 

The Board finds this opinion to be of limited probative value.  The examiner apparently interpreted the Veteran's statement that he first sought treatment for tinnitus in the late 1970's to mean that he first experienced tinnitus at that time.  In addition, the VA examiner did not address the Veteran's assertions noted in the claims folder that he has had tinnitus for many years, starting in 1969 while he was still in service.  

As such, the credible evidence demonstrates that the Veteran had tinnitus in service with unremitting symptoms since service and the currently diagnosed tinnitus is a result of the in-service acoustic trauma.  For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.



____________________________________________
K. J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs