Citation Nr: 1335474 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 13-06 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active service from March 1962 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. Bilateral sensorineural hearing loss did not manifest in service or within one year thereafter; the most persuasive and credible evidence of record does not relate the Veteran's bilateral hearing loss to his military service. 2. The evidence of record reflects a current diagnosis of bilateral tinnitus, as well as competent and credible reports of frequent and persistent symptomology congruent with this diagnosis dating back to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a) (2013). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.102 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, the United States Court of Appeals for Veteran's Claims Court (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. 18 Vet. App. 112, 120-21 (2004). In a letter dated March 2011, VA satisfied its duty to notify the Veteran. Specifically, the RO notified the Veteran of the information and evidence necessary to substantiate the claims; information and evidence that the VA would seek to provide; and information and evidence that the Veteran was expected to provide. The March 2011 letter also notified the Veteran about the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013) to assist the Veteran. The Veteran's service treatment records are of record. VA provided the Veteran with a medical examination in June 2011. The June 2011 examination report reflects that the examiner reviewed the Veteran's claim file, recorded his current complaints, conducted an appropriate examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board notes that the Veteran's representative asserted in the February 2013 substantive appeal, that the June 2011 VA opinion was inadequate because the examiner improperly treated the Veteran's normal hearing at separation as determinative of the Veteran's claim and the RO failed to advise the medical examiner that the Veteran's hazardous noise exposure during active service was conceded. The Board finds that the VA examination report and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In regards to the assertion that the examiner improperly relied upon the fact that the Veteran's hearing was normal at the time of separation, the Board finds that the examiner did not rely on this fact alone in opining that the Veteran's hearing loss was less likely than not related to active service. Although the Veteran's normal hearing was critical to the examiner's analysis, the examiner did not rely on that fact alone without further analysis. To the contrary, the examiner based his opinion on a sound medical principle, namely the examiner referenced a medical treatise by the American College of Occupational Medicine Noise and Hearing Conservation Committee that specifically indicated, and that a noise induced hearing loss will not progress once noise exposure is stopped. Thus, the examiner did not rely exclusively on the Veteran's normal hearing at the time of separation; rather he based his opinion on a sound medical principle, and provided a detailed rationale and explanation of the medical significance of the Veteran's normal hearing at separation. Accordingly, the examination report sufficiently informs the Board of the examiners judgment on whether the Veteran's hearing loss was causally related to service and provides the essential rationale for the examiner's opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Regarding the representative's second assertion, the Board finds that the failure to advise the medical examiner that the Veteran's hazardous in service noise exposure is conceded, is not prejudicial. The Veteran's hazardous noise exposure was not overlooked. Rather, the examination report specifically noted the Veteran's history of hazardous noise exposure while in active service. Based on the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. The Board will therefore review the merits of the Veteran's claims, de novo. Analysis In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. 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 Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & 2013); 38 C.F.R. § 3.303 (2013). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.S. § 1101; 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013). VA has specifically defined the term "disability" for service connection claims involving impaired hearing. 38 C.F.R. § 3.385 (2013). "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 (2013). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385 (2013); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Competency is a legal concept in determining whether lay or medical evidence may be considered. In other words, competency addresses whether the evidence is admissible as distinguished from weight and credibility, which is a factual determination going to the probative value of the evidence; that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (2013); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (noting that lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159 (2013). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Bilateral Hearing Loss The Veteran claims that his current bilateral hearing loss disability is related to his period of active service, including in-service noise exposure. The medical evidence shows that the Veteran has a current hearing loss disability in accordance with 38 C.F.R. § 3.385 (2013). Accordingly, element (1) is met. The Veteran's service treatment records are devoid of any instance of complaints of or treatment for symptomatology congruent with hearing loss. Furthermore, the Veteran was not diagnosed with his current disability during his active duty. However, the Veteran's DD Form 214 shows that his specialty was as a Combat Construction Specialist, which is an occupation traditionally associated with a high probability of in-service noise exposure. At his June 2011 VA audiology examination, the Veteran reported that during service he was assigned to a demolition unit and was exposed to live weapons fire, aircraft noise, and exploding ordinance without hearing protection. The Board notes that the Veteran is competent to describe his in-service noise exposure and acoustic trauma. In any event, the lack of evidence of hearing loss in service alone is not dispositive, as the Veteran's assertions of noise exposure must receive due consideration. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Accordingly, element (2) is met. As to element (3), the Veteran was provided with a VA audiology examination in June 2011. The Veteran's chief complaints were difficulty hearing when background noise was present. The Veteran also reported tinnitus but stated he did not know when it began and did not know the details on how the condition developed. The Veteran reported in-service noise exposure. Specifically, the Veteran reported that he was assigned to a demolition unit and that he was exposed to live weapons fire, aircraft noise, and ordinance explosions without hearing protection. The Veteran denied recreational and non-military occupational noise exposure. He also denied any history of ear disease, or head or ear trauma. The examiner diagnosed the Veteran with moderately severe, bilateral, sensorineural hearing loss. The examiner opined that the Veteran's hearing loss and tinnitus were less likely than not related to acoustic trauma during military service. The examiner explained that the Veteran's hearing thresholds at the time of separation were within normal limits and that research showed that noise induced hearing loss will not progress once noise exposure is stopped. In terms of etiology of the Veteran's bilateral hearing loss disability, the Board finds that the VA examiner's opinion is the most persuasive evidence. The examiner reviewed the entire claims file, examined the Veteran, and noted the Veteran's self-reported medical history, including his reports of in-service noise exposure. The examiner did not provide a positive nexus opinion. As the examiner's conclusion followed an extensive examination of the Veteran and claims file review, as well as consideration of reported history, it is accorded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). The Board recognizes the Veteran's belief that his hearing loss disability is related to his period of active service, to include his in-service noise exposure. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a hearing loss disability, falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran and his wife are competent to provide statements indicating that he experienced difficulty hearing, they cannot diagnose the Veteran with a hearing loss disability or relate his disability to his period of active service because diagnosing a hearing loss disability requires medical and diagnostic testing and identifying a medical etiology for a condition requires medical training. Further, as noted above, the Board attributes great value to the VA examiner's opinion as the opinion was provided by a trained medical professional who reviewed the claims file, examined the Veteran, and noted the Veteran's reported history, all prior to providing the negative nexus opinion. With respect to continuity of symptomology, the Board also acknowledges the lay statements from the Veteran's wife, indicating that she believed that the Veteran's loss of hearing was an ongoing problem since service. The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a) (2013). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's disability was diagnosed as sensorineural hearing loss, which is recognized as a chronic condition. 38 C.F.R. § 3.309(a) (2013). Nevertheless, while the Veteran's wife is competent to state that the Veteran had difficulty hearing since active service, the Board finds that she is not credible with respect to her reports related to onset or continuity of hearing loss symptoms since active service. The Board notes that the service treatment records contain no complaints of, or treatment for, hearing loss. Further, the Veteran's hearing was within normal limits at his separation examination, he reported that he was in good health, and he did not note any hearing problems. There was no indication of any hearing loss until 2011, more than 45 years after the Veteran's separation from active service. The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). Thus, the Veteran's wife's assertions of continuity of symptomatology are inconsistent with the other evidence in the claims file. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). In light of the above, the Board finds that the wife's assertion that the Veteran had hearing problems since service is not credible, and that service connection based on continuity of symptomatology is not warranted. After considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss because the most persuasive and credible evidence of record is against a finding of continuity of symptoms since service and against a finding that there is a nexus between his current bilateral hearing loss disability and an event, injury, or disease occurring in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. Therefore, the Board concludes that service connection for bilateral hearing loss is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). Finally, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes 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. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). In this case, there is no evidence of hearing loss to a compensable degree within one year of separation from service. Therefore, service connection on a presumptive basis is also not warranted. Tinnitus The Veteran claims that his current diagnosis of tinnitus is related to his period of active service, including in-service noise exposure. The Veteran was diagnosed with bilateral tinnitus at a June 2011 VA audiological examination. Accordingly, element (1) has been demonstrated. The Veteran's service treatment records are devoid of any instance of complaints of or treatment for symptomatology congruent with tinnitus, and he was not diagnosed with such during his active duty. However, as noted above, the Veteran's DD Form 214 shows that his specialty was as a Combat Construction Specialist, which is an occupation traditionally associated with a high probability of in-service noise exposure. At the June 2011 VA audiology examination, the Veteran reported that while in active service, he was assigned to a demolition until and was exposed to live weapons fire, aircraft noise, and exploding ordinance. The Veteran also reported that he did not use hearing protection during this noise exposure. The Veteran reported ringing in his ears but reported that he did not know the date when the ringing began or the details regarding how his tinnitus developed. In a December 2011 statement, the Veteran's wife stated that she lived with the Veteran during his tour of duty and that many times he came home from duty complaining of ringing in his ears. A layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran and his wife are both competent to report what they can perceive through their senses. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that the statements by the Veteran and his wife regarding the Veteran's noise exposure and tinnitus are consistent with the evidence of record. Accordingly, the Board finds that their statements are credible. Specifically, the Board finds that the Veteran is competent and credible to report that he experienced in-service noise exposure and that he experienced ringing in his ears. The Veteran's wife is competent and credible to report that she heard the Veteran complain of ringing in his ears during and after active service. In light of above, element (2) has been demonstrated. Concerning element (3), evidence of a nexus between the Veteran's currently diagnosed tinnitus and his in-service noise exposure, the Board notes that there is a negative nexus opinion of record. The June 2011 VA audiologist opined that since the Veteran had normal hearing sensitivity at separation and no complaints of tinnitus were documented during active service, the Veteran's tinnitus was less likely than not related to noise exposure while in service. The Board notes that the VA audiology examination was in June 2011, and that the examiner was therefore not able to review the December 2011 statement from the Veteran's wife concerning the on-set of the Veteran's tinnitus symptomology during service. As noted above, the Veteran's wife reported that many times the Veteran came home from duty complaining of ringing in his ears from working with explosives. She also stated that the ringing in his ears was an ongoing problem since active service. The Board finds the wife's statement to be the most probative evidence regarding the on-set of the Veteran's tinnitus. Therefore, in view of the lay and medical evidence of persistent tinnitus symptomatology since service, and the lack of probative evidence to the contrary, the Board finds that there is adequate evidence that the Veteran's persistent tinnitus symptoms during and since his active duty are related to his currently diagnosed tinnitus. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Accordingly, the Board finds that service connection for tinnitus should be granted. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs