Citation Nr: 1335896 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-06 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A timely notice of disagreement (NOD) was received from the Veteran in July 2008. After a statement of the case (SOC) was issued to the Veteran in January 2009, the Veteran perfected his appeal in February 2009 by filing a substantive appeal, via VA Form 9. The Veteran testified at an August 2009 hearing that was held before a Decision Review Officer (DRO) at the RO. A copy of the transcript of those proceedings is associated with the claims file. This matter was previously remanded by the Board in January 2011and June 2012 for further development of the issues on appeal. The RO has undertaken efforts to comply with the action directed in the Board's remand and this matter now returns to the Board for its de novo consideration. The RO obtained the Veteran's post-service employment medical records and obtained additional VA examination opinions. As such, the Board finds that there has been substantial compliance with the directives of the January 2011 and June 2012 remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A review of the Virtual VA paperless claims processing system revealed a copy of an informal hearing brief from the Veteran's representative. FINDINGS OF FACT 1. Granting the Veteran the benefit of the doubt, the evidence of record demonstrates that tinnitus is related to active service. 2. The competent medical evidence of record does not show that the Veteran has bilateral hearing loss that was caused or aggravated by military service, nor is it presumed to be. CONCLUSIONS OF LAW 1. Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO informed the Veteran of VA's duty to assist him in the development of his claim in a letter dated October 2007, that contained all of the required notice. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) and post-service employment treatment records have been obtained and associated with the claims file. The AMC attempted to obtain all of the Veteran's post-service employment records, which involved civilian employment with the Army and Navy respectively. However, upon a specific request for the Veteran's records, to include Army civilian records from 1978 to 1986 at Fort Harrison, the National Personnel Records Center only provided records from the Veteran's post-service employment with the Navy, beginning in 1996, but not any earlier records. As such, records earlier than 1996 are presumed unavailable. The Veteran was notified of the consideration of these records in his May 2013 supplemental statement of the case. However, he has not submitted any copies of records earlier than 1996 or requested any further follow-up. Additionally, VA provided the Veteran with medical examinations that were adequate because the examiners reviewed the claims file, took full medical histories, conducted the appropriate diagnostic testing, and provided rationales for the ultimate medical opinions. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may also be granted for chronic disabilities, such as sensorineural hearing loss, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran's sensorineural hearing loss is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). 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, 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 relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that his bilateral hearing loss and tinnitus were the result of noise exposure during his military service. To this effect, the Veteran has asserted that he was exposed to noise from riding in tanks, 50 caliber fire, M16 fire, grenades, 60 caliber fire, and claymore mines. The Veteran's service personnel records reflect that his military occupational specialty (MOS) was that of an armor recon specialist and that he was awarded the Sharpshooter badge for the M16. A review of the Veteran's STRs show that, upon entrance to service, he had high frequency left ear hearing loss. Upon exit from service, the Veteran's left ear high frequency hearing loss was unchanged. There were no reports of tinnitus or right ear hearing loss noted in service. A review of the Veteran's post-service employment medical treatment records show that, since 1996, the Veteran has been monitored for his bilateral hearing loss and since July 1999, he has complained of tinnitus. These records were absent for a discussion of any relationship of these conditions to the Veteran's military service. The Veteran was administered a VA examination on April 2008. The Veteran stated that he was exposed to heavy weapons and small arms fire as well as working in a tank without the use of hearing protection on occasion during his military service. Post service occupational noise exposure was admitted in the Veteran's duties as a border operator, but it was stated that ear plugs were used. The examiner found that the Veteran was positive for a history of tinnitus that was bilateral and constant. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 40 45 LEFT 20 25 30 75 75 Speech eudiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with mild high frequency sensorineural hearing loss in the right ear and mild sloping to severe sensorineural hearing loss in the left ear. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were related to military noise exposure, based upon the Veteran's STRs which showed only left ear hearing loss when he entered service and a consistent amount of left ear hearing loss when he left service. The Veteran was administered an additional VA examination on February 2011. The Veteran stated that he was exposed to heavy weapons and small arms fire as well as working in a tank without the use of hearing protection on occasion during his military service. Post service occupational noise exposure was admitted in the Veteran's duties as a border operator, but it was stated that ear plugs were used. The examiner found that the Veteran was positive for a history of tinnitus that was bilateral and constant. It was further noted that the tinnitus was greater in the left ear than in the right and that the Veteran claimed onset and continuity since 1975. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 50 55 LEFT 25 25 40 70 75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 80 percent in the left ear. The examiner diagnosed the Veteran with normal to moderate sensorineural hearing loss in the right ear and normal to severe sensorineural hearing loss in the left ear. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were related to military noise exposure, based upon the Veteran's STRs which showed only left ear hearing loss when he entered service and a consistent amount of left ear hearing loss when he left service. However, the examiner further stated that it is possible that the Veteran's tinnitus may have developed from his military noise exposure due to his continued complaints since 1975. It was also provided that tinnitus can develop independent of hearing loss in cases of noise exposure. The Veteran was administered an additional VA examination on June 2011. Upon reviewing the Veteran's claims file, the examiner opined that she could not determine if the Veteran's bilateral hearing loss and tinnitus were related to military noise exposure without resorting to mere speculation. In support, the examiner provided that she could not determine if the hearing loss and tinnitus were caused by in-service noise exposure or post-service noise exposure, as the Veteran had both. Further, she stated that the Veteran's first complaints of tinnitus were in 2007 and there were no indications of this condition in the Veteran's service treatment records. The Veteran was administered an additional VA examination on August 2011. Upon reviewing the Veteran's claims file, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were related to military noise exposure, based upon the Veteran's STRs which showed only left ear hearing loss when he entered service and a consistent amount of left ear hearing loss when he left service. The Veteran was administered an additional VA examination on March 2013. Upon review of the Veteran's claims file, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were related to military noise exposure, based upon the Veteran's STRs which showed only left ear hearing loss when he entered service and a consistent amount of left ear hearing loss when he left service. She further provided that the greater amount of noise to which the Veteran was exposed post-service was more likely the cause of the Veteran's current hearing loss and tinnitus than the smaller amount of exposure in-service. Analysis Tinnitus The Board finds that the evidence of record supports service connection for tinnitus. First, there is a current disability because the Veteran has provided competent and credible evidence of ringing in his ears. See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Second, there is an in-service incurrence because the Veteran has provided competent and credible evidence of ringing in his ears during service, beginning in 1975. Id. Furthermore, the Veteran's MOS indicates in-service noise exposure, which tends to support his statements of ringing in his ears during service. Third, the Veteran has provided competent and credible testimony that his tinnitus has continued since service discharge. See 38 C.F.R. § 3.303(b); see also Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. 511. Accordingly, the evidence of record supports a finding of service connection for tinnitus. The Board notes that the April 2008, August 2011, and March 2013 VA examiners provided negative etiological opinions. The examiners provided these opinions, however, in reliance on the absence of treatment for tinnitus in service, the absence of a hearing loss shift in service, and the finding that the earliest complaint of tinnitus was in 2007. However, the Veteran's private treatment records show that he had complained of tinnitus earlier in 1999 and had also told examiners that it first began in 1975 and continued to present. Furthermore, the February 2011 VA examiner opined that the Veteran's tinnitus could have possibly been caused by the Veteran's in-service noise exposure and that an absence of in-service hearing loss shift would not be fatal to such a showing, as there have been instances of tinnitus occurring independent of hearing loss after noise exposure. Also, the 2008, 2011, and 2013 VA examiners reliance on the mere fact that there is no evidence of treatment in service is not a sufficient rationale for VA purposes. See Nieves-Rodriguez v. Peak, 22 Vet App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). Finally, the Board finds the Veteran's lay statements competent, credible, and probative. See Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. 511. Additionally, the Board does not assign significant weight to the negative VA opinions because they were provided in part on an incorrect factual basis as well as providing insufficient reasoning. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based on an inaccurate factual premise has no probative value); see also Nieves-Rodriguez, 22 Vet App. at 295. As such, the Board has determined that the Veteran is competent and credible in his report that he was exposed to acoustic trauma in service, experienced bilateral constant tinnitus in service, and has experienced continuous symptoms of tinnitus since service. Therefore, service connection for tinnitus is warranted. Bilateral hearing loss Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss, so the appeal must be denied. The evidence does show that there is a current disability for VA purposes, as there is evidence that the Veteran's hearing loss meets the standards in accordance with 38 C.F.R. § 3.385. Further, although it is conceded that the Veteran experienced an event or injury in service, as shown by his exposure to acoustic trauma related to his MOS, the Veteran's STRs do not show that he suffered any hearing loss or aggravation thereof in-service, as his entrance and exit physical examinations both showed only high frequency left ear hearing loss that remained consistent throughout the period of service. Additionally, the Veteran admitted that he served in a high noise environment, albeit with the use of ear plugs, during his post-service employment for many years. The Veteran's employment records from 1996 to present show that the Veteran's hearing was continually monitored and showed degradation in both ears, but did not attribute such loss to the Veteran's military noise exposure. Further, the VA examiners of record have noted such employment and the most recent examiner in March 2013 opined that the post-service occupation was more likely the cause of the Veteran's current bilateral hearing loss, as there was documentation of hearing loss shifts bilaterally in the Veteran's employee medical records, but no documented hearing loss shift for the left ear in service or any hearing loss at all in the right ear in service. In light of these facts, the medical evidence of record does not indicate that the Veteran's hearing loss was caused or aggravated by his military service. There is also no evidence that the Veteran's current bilateral hearing loss disability developed to a compensable degree within one year after service discharge. As such, service connection based upon presumption is also not warranted. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs