Citation Nr: 1336101	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  13-07 618	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral sensorineural 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. Honan, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 1961 to August 1970. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for hearing loss and tinnitus. 


FINDINGS OF FACT

1.  The preponderance of the competent and credible evidence shows that the Veteran's bilateral hearing loss was not manifested during service and is not etiologically related to service; sensorineural hearing loss was not shown during the first year after discharge from service.

2.  The preponderance of the competent and credible evidence shows that the Veteran's tinnitus was not manifested during service and is not etiologically related to service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral sensorineural hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 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. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The VA has a duty to provide notification with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Proper notice must inform the claimant 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 claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004).  This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) the Veteran status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. 

VA's notice requirements were satisfied by a letter issued in April 2011, which explained the evidence the Veteran was responsible for obtaining and the evidence VA would obtain on his behalf, the criteria for establishing service connection, and the method by which VA determines disability ratings and effective dates.

Regarding VA's duty to assist, the Veteran's service treatment records, personnel records, and VA treatment records are associated with his claims file, and the Veteran has not identified any relevant, available treatment records that have not been obtained.  The Veteran was also provided with a relevant VA examination in November 2011 to address the etiology of his claimed hearing loss and tinnitus.  The Board finds that the VA examination and related medical opinion are sufficient for adjudicatory purposes.  The examination report reflects that the examiner performed an audiometric examination of the Veteran, and the medical opinion is based upon review of the Veteran's claims file and is supported by a sufficient rationale.  Furthermore, the Veteran was offered an opportunity to testify at a hearing before the Board, but he declined.  For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. 

As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

II. Analysis

The Veteran asserts that he was exposed to acoustic trauma during his service as an engineer and this acoustic trauma caused his hearing loss and tinnitus. 

In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. 

Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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.  Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a).

Service connection for certain chronic disorders, including sensorineural hearing loss, may be established based upon a legal 'presumption' by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 at 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) (West 2002).  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). 

With respect to claims, such as the one at issue, which involve service connection for hearing loss, the Board notes that this particular disability is defined by regulation.  Specifically, under 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; when the auditory thresholds for at least three of the above frequencies 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.  Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Next, the Board acknowledges that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley, 5 Vet. App. at 159. 

Moreover, to establish service connection for sensorineural hearing loss, the Veteran is not obligated to show that his hearing loss was present during active service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

The Veteran's in-service audiometric testing conducted during a reenlistment examination (June 1963), periodic examination (June 1969), and separation examination (August 1970) did not reflect findings indicating hearing loss for VA purposes.  Additionally, on separation from service, the Veteran denied ever having experienced hearing loss or any ear trouble.

The record reflects that when the Veteran submitted a prior, March 2007 claim for a different disability, he did not seek service connection for hearing loss or tinnitus. 

Post-service VA treatment records reflect that the Veteran first reported experiencing hearing loss and tinnitus in March 2011 (i.e. approximately the same time the Veteran submitted his claim for these disabilities). 

In November 2011, the Veteran was afforded an audiology examination.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus.  Specifically, audiometric testing revealed pure tone thresholds in decibels as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
10
20
60
65
65
72
LEFT
20
20
30
65
70
94

The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service.  He found the February 1961 whispered speech test provided during the Veteran's entrance examination to be of no value in determining specific hearing loss.  However, he stated that reenlistment and separation audiograms indicated normal hearing bilaterally.  The examiner also found no complaint of hearing loss in the military record.  And while the Veteran reported exposure to artillery, weapons, and explosives during service, he also described significant post-service exposure to noise.  Specifically, he reported working in an aluminum foundry, working in a power plant, and tractor driving from 1971 to 1976, as well as semi-truck driving from 1985 to 1987.  He also reported the weekly use of power tools without hearing protection.  The examiner concluded that it was less likely that the Veteran's hearing loss resulted from military noise exposure and was more likely due to occupational and recreational noise exposure. 

The examiner also opined that the Veteran's tinnitus was not at least as likely as not caused by or a result of an event in military service.  Although the Veteran reported recurrent tinnitus with onset in service, the examiner cited a lack of complaint of tinnitus in the military record, normal reenlistment and separation examinations, and significant post-service noise exposure, described above, as the basis for his rationale.    

As a preliminary matter, the Board finds that entitlement to presumptive service connection for sensorineural hearing loss as a chronic condition under 38 C.F.R. § 3.309(a) is not shown by the evidence of record.  The Veteran did not experience hearing loss during service or to a compensable degree during the first year after discharge from service.  His audiometer scores in service showed no hearing loss, and the record reflects that he first complained of hearing loss in 2011, more than 40 years after service.  

As to direct service connection, the Board finds neither of the Veteran's claims to be supported by the evidence of record.  The Board concedes that the Veteran is currently diagnosed with bilateral sensorineural hearing loss and tinnitus, and that he was exposed to noise in service.  However, the Board finds that the VA examiner's report, which declined to relate either hearing loss or tinnitus to service, is entitled to greater evidentiary weight than the Veteran's own assertion of in-service causation.  

The Board acknowledges that the Veteran is competent to report a history of hearing problems and tinnitus, which are within the realm of his personal experience.  Layno, 6 Vet. App. at 469; Charles v. Principi, 16 Vet. App. 370 (2002).  However, he has not shown that he has the clinical expertise to comment on complicated medical issues, such as the nature and etiology of his current bilateral sensorineural hearing loss.  See 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  

Furthermore, given the silence in the service treatment records, the failure to mention his hearing loss and tinnitus in his earlier, March 2007 claim submitted to VA, and the absence of any such complaints in the post-service treatment records until March 2011, the Board determines that the Veteran's report that his tinnitus onset occurred in service is not credible, and thus should be afforded no probative weight. 

By contrast, the Board finds that the VA medical opinion regarding hearing loss and tinnitus is highly probative, as it was rendered after a review of the Veteran's claims file and is supported by a sufficient rationale.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).  

The examiner's medical opinion is also consistent with the evidence of record, which reflects that the Veteran denied having experienced any ear trouble on separation from service, and first reported hearing loss and tinnitus in 2011, approximately 41 years after service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service).  Furthermore, neither the Veteran nor his representative submitted medical evidence contradicting the VA examiner's opinion.  

In summary, the Board determines that the Veteran's report of a nexus between in-service noise exposure and his current hearing loss and tinnitus is not competent, and his specific assertion of his tinnitus onset in service is not credible.  Because the only medical opinion of record failed to link the Veteran's current hearing loss or tinnitus to service, the evidence weighs against the claims for service connection.  The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations.  See 38 U.S.C.A.   § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  As a result, the Veteran's claims must be denied.  


ORDER

Service connection for bilateral sensorineural hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs