Citation Nr: 1335891 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 13-19 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to October 1957. This appeal to the Board of Veterans' Appeals (Board) is from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board notes that on his July 2013 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a hearing before the Board via video conference. However, the Veteran failed to report for his scheduled hearing so the Board is proceeding as though he withdrew his request because the Veteran neither filed for a postponement of his hearing nor provided documentation showing good cause for his failure to appear. 38 C.F.R. § 20.704(d) (2013). 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 sensorineural hearing loss did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. 2. Tinnitus did not become manifest during service and is not etiologically related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active service and sensorineural bilateral hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The Veteran's claim was filed as a fully developed claim (FDC) pursuant to the Secretary's program to expedite VA claims. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by the VA. Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA medical examination, may still be required prior to the adjudication of the claim. See VA Form 21-526EZ. The FDC form includes notice to the Veteran of what evidence is required to substantiate a claim for an increased disability rating and of the Veteran's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. See VA Form 21-526EZ. Thus, the notice that is part of the claim form submitted by the Veteran satisfies the duty to notify. Relevant to the duty to assist, the Board acknowledges that the Veteran's service treatment and personnel records, aside from his DD Form 214, are not on file, and it has been noted that they may have been destroyed in a fire. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. The Board also notes the Veteran's VA treatment records have been associated with the claims file. These date from beginning in 2001. The Veteran previously indicated he had received treatment at VA medical facilities since 1996. However, in March 2013, he advised 2001 was the correct date. The Veteran has not identified any additional relevant outstanding records that have not been requested or obtained. Finally, the Veteran was also provided a VA compensation examination in September 2012 which included an opinion concerning the nature and etiology of his bilateral hearing loss and tinnitus. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process, has done so, and the Board may proceed with a decision. II. Service Connection Claims Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. 155, 159. Regarding the claim for tinnitus, it is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In the instant case, the Veteran seeks service connection for a bilateral hearing loss disability and tinnitus. The Veteran contends that he currently has hearing loss and tinnitus as a result of military noise exposure during his active duty service in Korea. As already noted, the Veteran's service treatment and personnel records are not on file, and they may have been destroyed in a fire at the National Records Center. The Board acknowledges that the record does show the Veteran had active service in Korea. His DD Form 214 indicates his military occupational specialty (MOS) as an engineer (Pioneer), and as such, his training would have exposed him to acoustic trauma. In this regard, the Veteran noted that no hearing protection was used at the time. However, the earliest post service records, which date from 2001, do not reference any claimed condition until 2004. This would be inconsistent with a claim that the disabilities had been present for nearly a half century. The Board also notes, the Veteran filed a previous claim for service connection in May 2005, at which time, he made no indication he suffered from bilateral hearing loss or tinnitus. That, likewise, is a strong suggestion the currently claimed conditions were not present for half a century since service, because there is no other obvious reason to have omitted the currently claimed disability at the time of that 2005 application. In September 2012, the Veteran was scheduled for a VA audiological examination. At that time, the examiner confirmed diagnoses of bilateral sensorineural hearing loss pursuant to 38 C.F.R. § 3.385, and bilateral tinnitus. The Veteran reported experiencing loud noise from volunteering to work with a sergeant that demonstrated explosions to different groups. He also reported that since his military service, the Veteran worked for a rubber plant, as a police officer, as an IBM tool and model maker, drove a tour bus, worked at Lowes, and also worked at Keenland during the races. The examiner ultimately concluded that it is less likely as not that bilateral hearing loss is due to the Veteran's military service. As rationale for his unfavorable opinion regarding hearing loss, the examiner stated that there was no evidence the Veteran acknowledged difficulty with hearing or complaints of tinnitus when he separated from service or in the years following, inferring that had there been a service related hearing loss, it would have been significant enough relatively soon after service to necessitate medical intervention for which there would be some objective evidence. Therefore, given the amount of time that elapsed following service in 1957, together with the lack of evidence indicating that his hearing loss and tinnitus had a much earlier onset, it was concluded it is less likely as not the bilateral hearing loss and tinnitus were due to the Veteran's military service. Concerning the Veteran's tinnitus specifically, the examiner stated that tinnitus is most often a symptom of hearing loss and if a reasonable nexus cannot be established between hearing loss and the Veteran's military service, then it is also difficult to establish a directly link of tinnitus to the military service. Therefore, the examiner again concluded that the Veteran's current tinnitus is less likely as not caused by or a result of military noise exposure. Based on the foregoing, the Board concludes that the evidence is against the service connection claims. The September 2012 VA examiner found the Veteran's hearing loss and tinnitus were not related to service. This examiner conducted a comprehensive clinical examination and evidentiary review, and indicated familiarity with the Veteran's pertinent medical and lay history. The examiner provided a rationale regarding the Veteran's current condition and offered an adverse opinion regarding the relationship between the Veteran's active duty service and the results of the examination. There are no conflicting opinions. Further, there is no competent medical evidence of record reflecting that the Veteran demonstrated bilateral hearing loss to a compensable degree within one year of discharge from active duty, and the VA examiner's opinion also weighs against this finding. Otherwise, there is no medical evidence of record indicating that the Veteran's bilateral hearing loss and tinnitus were caused or aggravated by his active duty service. Accordingly, entitlement to direct service connection under 38 C.F.R. § 3.304 for both conditions or to presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.309(a) is not shown. The Veteran has asserted his personal belief that he has hearing loss and tinnitus due to noise exposure in service. The Veteran is competent to report noise exposure in service, and he is competent to report difficulty hearing since, but he is not competent as a layperson to opine regarding the etiology of hearing disability that demonstrably became manifest many years after service. Kahana, 24 Vet. App. 428. In sum, the Board has found the Veteran does not have bilateral hearing loss or tinnitus that is incurred in, due to or aggravated by service. Accordingly, the criteria for service connection are not met and the claims must be denied. Because the preponderance of the evidence is against the claims the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs