Citation Nr: 1335447	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  11-26 143	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jonathan Tracy, Associate Counsel




INTRODUCTION

The Veteran served on active duty from October 1951 to October 1955, with additional unverified service from October 1955 to November 1959. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2010 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  

The Veteran requested a Board hearing in his September 2011 VA Form 9.  However, in a statement received in November 2011, the Veteran cancelled his request for a Board hearing.   
 
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Bilateral hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, nor is bilateral hearing loss otherwise related to such service.

2.  There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has tinnitus causally 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, 1110, 1112, 1131, 1154, 3103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants 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 and 3.326(a).  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).  Notice was provided to the Veteran in January 2010 for his hearing loss claim and July 2010 for his tinnitus claim.

VA has a duty to assist the Veteran in the development of the claims.  The claims file includes service treatment records (STRs), VA and private medical records and correspondence, and the statements of the Veteran and his wife in support of the Veteran's claims.  The only available STRs consist of the Veteran's enlistment and separation examinations from his verified period of active duty.  The RO notified the Veteran in the April 2010 rating decision that his complete STRs were unavailable.  The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain.  The Board has also reviewed records on Virtual VA and the Veterans Benefits Management System (VBMS).   

The Veteran was afforded a VA examination in July 2011.  The Board finds that the VA examination was adequate as the examiner reviewed the claims folder, considered the Veteran's history and the current examination results, and provided rationales for the opinions offered.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Hence, no further notice or assistance to the appellant 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Service Connection Criteria

The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  

For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of 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 C.F.R. § 3.307.  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. Feb. 21, 2013).  

Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). Sensorineural hearing loss is included in 38 C.F.R. § 3.309(a) as an organic disease of the nervous system.  The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a). 

When a veteran's service medical records are not available, the Board's duty to explain its findings and conclusions is heightened.  There is also a heightened duty to consider resolving reasonable doubt in favor of the claimant, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed.  O'Hare v Derwinski, 1 Vet. App. 365 (1991).  The legal standard for proving a claim for service connection is not lowered, but rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant is increased. 

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.  38 U.S.C.A. § 5107(b). 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).

III.  Analysis

A.  Hearing Loss

The Veteran asserts that his hearing loss is related to in-service noise exposure from twin 5/38 guns and small arms fire while serving aboard a destroyer class naval vessel.  He further asserts that he was not given hearing protection in service.    

For the purpose of applying the laws administered by VA, impaired hearing will be considered 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.

The record reflects that the Veteran's bilateral hearing loss currently meets the regulatory thresholds to be considered disabling.  An audiometric evaluation was performed by a private audiologist in June 2010.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
40
45
50
LEFT
40
40
50
45
55
    
The VA audiometric examination conducted in July 2011 resulted in pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
45
35
50
60
LEFT
50
50
50
50
70

The remaining question is whether the current bilateral hearing loss is related to his service.  The Board notes that a lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Here, more than 50 years separate service from treatment and diagnosis.  

The available service treatment records are silent for hearing loss.  The October 1951 examination notes no hearing loss disability upon the Veteran's entrance into service.  The October 1955 separation examination notes no hearing loss disability.  He passed the whisper voice and spoken voice tests; however, he was not afforded an audiometric examination.  A memorandum dated in March 2010 provides that no other service treatment records are available.  However, the Board notes that the Veteran is not prejudiced by this because he asserted in a statement provided in March 2010 that he was not diagnosed with or treated for hearing loss in service and his "service medical records would be non-contributory."  

The first indication of hearing loss after service is a VA outpatient treatment report from November 2009 when an audiology evaluation was requested.  At that evaluation, the Veteran complained of hearing loss and tinnitus.  He reported acoustic trauma in the Navy while serving on a destroyer.  However, no history or etiology of the Veteran's hearing problems are provided in the VA treatment records.  The Veteran was provided with hearing aids in February 2010.  

While the VA examiner and the private audiologist opined that the Veteran has bilateral hearing loss, they provided different opinions on the etiology.  The private audiologist's June 2010 opinion responded to the RO's April 2010 rating decision.  He wrote that simply because the Veteran passed the whisper voice and spoken voice tests does not mean the Veteran had normal hearing at the time of the separation examination in 1955.  Therefore, the private audiologist concluded, the RO's statement that the Veteran's hearing was normal when he was discharged is invalid.  Based on the Veteran's reported history (which is not included in the audiologist's report) and the evaluation, the private audiologist concluded that it is more likely than not that the Veteran acquired hearing loss due to his military service.  

The VA examiner concluded otherwise.  At the July 2011 examination, the claims file was reviewed and the examiner took a complete history of the Veteran.  The Veteran reported experiencing a progressive onset of bilateral hearing loss over the "last 2 to 3 years."  The Veteran denied a history of chronic ear disease, trauma to the ears, or surgery to the ears.  The Veteran reported a history of noise exposure in the military from gun mounts fired during training exercises.  He denied the availability or utilization of hearing protection.  The examiner noted that after service, the Veteran worked in "an industry where noise levels are questionable."  During the past 30 years, the Veteran reported working in a hospital away from loud noise.  The Veteran also denied exposure to recreational noise.     

The VA examiner concluded that in review of the Veteran's test results "where hearing configuration appears more likely to be related to presbycusis and not noise-induced hearing loss as well as the Veteran's report of both hearing loss and onset of tinnitus to be within the last 4 to 5 years, respectively long after his military discharge.  Hearing loss and tinnitus appear less likely as not related to his military service, but to those events instead which occurred long following his military discharge."  

Where, as here, conflicting medical opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given.  See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).  Greater weight may be placed on one clinician's opinion than another's based on the reasoning in the opinions, and whether and to what extent the clinicians reviewed the Veteran's prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

In this case, the Board finds that the VA examination carries greater probative weight.  The majority of the private audiologist's rationale was spent discussing the 1955 whisper and spoken word tests.  The audiologist criticized those tests as inadequate.  The Board does not dispute that the whisper and spoken word test are not as accurate as an audiometric evaluation.  Unfortunately, an audiometric evaluation was not provided to the Veteran upon separation from service.  Regardless, the fact that the Veteran was not adequately tested in 1955 does not address whether his current hearing problem is connected to his service from 1951 to 1955.  Criticism of the 1955 evaluation is not an adequate rationale in support of service connection.            

The private audiologist wrote that his opinion was based on "this gentleman's reports" (i.e., the Veteran's) but fails to document what those "reports" are in the rationale for the opinion.  The Board has no way to know exactly what other information the audiologist relied on in drawing his conclusion.  Finally, the private audiologist does not address the lapse in time (more than 50 years) between the Veteran's active duty service and the first medical evidence of a hearing problem.  
  
In contrast, the VA examiner's opinion provided a complete rationale.  The history provided by the Veteran was considered and discussed.  In drawing a conclusion, the examiner relied on well-grounded reasoning.  First, the hearing configuration shown on testing appeared more likely to be related to presbycusis and not noise-induced hearing loss.  Second, the examiner relied on the fact that the Veteran reported that the onset of his hearing loss was only a few years before the VA examination, long after separation from service.  

The Board concludes that the VA examiner's report provides a sufficient rationale, whereas the private audiologist does not provide a sufficient rationale.  Therefore, the Board gives more probative weight to the VA examination.                      

The Board also considered the lay evidence of record.  The Veteran's wife submitted a statement in September 2011.  As discussed above, lay evidence is competent to report symptoms because this requires only personal knowledge as it comes to him or her through his or her senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, lay evidence is not competent to provide a medical diagnosis and medical nexus opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).   The wife's statement, therefore, that the husband has had difficulty hearing in the past is not probative to the issue of when and how the Veteran's hearing problems began.

The Board also considered the Veteran's lay statements.  Again, the Veteran is competent to describe his symptoms.  Layno, 6 Vet. App. at 470.  In his December 2009 claim, he asserted that his hearing loss disability began at age 68, over 40 years after service.  At the VA examination in July 2011, the Veteran asserted that he noticed the onset of bilateral hearing loss 2 to 3 years before the examination.  In his statement provided in October 2011, the Veteran asserted that his hearing loss began at least 2 decades ago, but it had progressed much more in the past few years.  Even if the Board accepts this change in his last assertion as credible, that would still place the onset of his hearing loss at more than 25 years after service.  

There is no competent evidence of record which provides a link between the Veteran's active duty service and hearing loss.  After thorough review of the evidence currently of record, the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss.

B.  Tinnitus

Entitlement to service connection for tinnitus is not warranted.  As with hearing loss, there is no complaint, diagnosis, or treatment for tinnitus in service.  After separation from service, there is no indication of tinnitus until the Veteran sought VA treatment in December 2009, decades after separation from service.  In his claim for service connection, he did not assert when he began experiencing symptoms of tinnitus.  In his notice of disagreement dated in July 2010, he asserted that he has suffered from tinnitus since service.  At his VA examination, the Veteran claimed that he began experiencing intermittent tinnitus occurring 1 to 2 times per month lasting 15 to 20 minutes per episode.  Yet, he claimed that the onset of tinnitus was within the last 4 to 5 years, several decades after service.  The Veteran did not address the onset of tinnitus in any other statement and the private audiologist, who diagnosed tinnitus, does not discuss the onset.

A claimant is competent in some cases to diagnose some disabilities despite his status as a lay person.  Tinnitus is one such example as it is observable with the sense.  As a layman, however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability.  Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); and Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Veteran's statements are contradictory.  Between his notice of disagreement and the history he provided the VA examiner, the Board finds the statement made to the examiner to be more probative.  The information provided to the examiner was given during a professional medical examination and was given in the context of relaying his medical history.  In contrast, the notice of disagreement offered only a cursory statement that he has had tinnitus since service and offers no other relevant information.  As such, the Board finds that the Veteran lacks credibility when he states that he has had tinnitus since service.  

There are also conflicting medical opinions.  The VA examiner opined that it was less likely than not that the Veteran's tinnitus was related to service and the private audiologist opined that the tinnitus was related to service.  As discussed in connection with the hearing loss claim, the Board assigns greater probative value to the VA examination more than the private examination.  

After examination in July 2011 the VA examiner rendered the opinion that the Veteran's tinnitus was not related to the Veteran's active service.  Therefore, entitlement to service connection for tinnitus is denied.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs