Citation Nr: 1336255	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  10-40 915	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


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


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel

INTRODUCTION

The Veteran served on active duty from February 1962 to February 1965. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In April 2013, the Veteran presented testimony at a Travel Board hearing held at the RO, before the undersigned Veterans Law Judge (VLJ). A transcript of the personal hearing is located in the Virtual File. Additional evidence received at the hearing was accompanied by a waiver of initial review by the RO. 38 C.F.R. § 20.1304 (2012). 


FINDINGS OF FACT

1.  Bilateral hearing loss did not manifest during service; it did not manifest within one year thereafter; it has not been shown to have had its onset in service; and it is not the result of a disease or injury incurred in active service.

2. Tinnitus did not have its onset in service, and is not the result of a disease or injury incurred in active service.


CONCLUSIONS OF LAW

1. Bilateral hearing loss was not incurred in or aggravated during active service; nor may service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385 (2013).

2. Tinnitus was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. 

VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a November 2008 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. 

Additionally, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the rating and effective date of an award. The November 2008 notice included the Dingess requirements pertaining to ratings and effective dates. But as described below, service connection for the claimed disabilities is being denied and neither a rating nor an effective date will be assigned. So in any event, there would be no prejudice to the Veteran with respect to any notice deficiencies related to the rating or effective date. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). 

Also, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). The information and evidence associated with the claims file also consists of VA medical treatment records, private post-service treatment records, VA examinations, and statements and testimony from the Veteran and his representative. It was determined in November 2009 by the Social Security Administration (SSA) that SSA records for the Veteran did not exist. In December 2009, the Veteran was formally notified by VA that there were no SSA records. The record also contains a July 2009 VA audiological examination and expert opinion regarding the etiology of the claimed bilateral hearing loss and tinnitus. The Board finds the examiner had access to an accurate and complete history and provided a thorough rationale for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As such, the VA opinion is adequate. 

Finally, the Veteran was provided an opportunity to fully set forth his contentions during a hearing before the undersigned Veterans Law Judge. Recently, the Court held that during a hearing on appeal, a Veterans Law Judge has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The undersigned Veterans Law Judge clearly set forth the issue to be discussed and explained the reasons for the RO denial. The undersigned Veterans Law Judge also sought to identify pertinent evidence not currently associated with the claims folder and elicited further information as to the dates and locations of treatment when appropriate. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  

There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). 

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 

Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Where there is a 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) (2013). 

This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). 

To establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). By regulation, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system". VBA's M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note: "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a.

Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). 

VA has specifically defined the term "disability" for service connection claims involving impaired hearing. 38 C.F.R. § 3.385. "[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. 

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; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In Hensley the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." 5 Vet. App. at 159. The Court explained that:[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 5 Vet. App. at 160.

Military audiograms conducted prior to November 1967 were reported in American Standards Association (ASA) units. VA used ASA units prior to July 1966, but in July 1966 VA adopted International Organization for Standardization (ISO) units. The military began using ISO units in November 1967. The current VA definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units, designated in parentheses below. 

Background

The Veteran contends that he has bilateral hearing loss and tinnitus as the result of acoustic trauma he incurred during his military service. Specifically, he testified that his hearing loss and tinnitus are related to firing weapons during service. 

The Veteran's February 1962 service entrance medical records reveal no abnormalities or complaints concerning the ears or his hearing. The entrance physical examination audiometric testing revealed that pure tone thresholds in decibels, were as follows: HERTZ 500, 1000, 2000, 3000, 4000; and 6000; RIGHT,-10(5),-10(0), -10(0), 10(0),-10(-5),-10(0); LEFT -10(5), -10(0), -10(0), -10(0), -10(-5), -10(0). 

On the Veteran's separation physical examination no abnormalities or complaints of the ears or hearing were reported. The physical examination audiometric testing revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500, 1000, 2000, 4000; and 6000; RIGHT, 0(15), 0(10), 0(10), 10(15), 10(0); LEFT 0(15), 0(10), 0(10), 0(5), 0(10). The Veteran's service treatment records do not contain findings of hearing loss or tinnitus.

VA audiological testing in December 2006 shows that the Veteran had decreased hearing in levels past 1000 Hertz, bilaterally. 

In a July 2009 VA audiological examination and opinion, an audiologist reported that the Veteran's claims file had been reviewed. The Veteran complained of bilateral hearing loss that occurred a long time ago. He reported that he was exposed to rifle and gunfire without hearing protection during and after basic training while in service. He stated that he worked as a truck driver for 20 years driving with the window down often. He had recreational usage of machinery, lawn mowers, and tractors without hearing protection. He rode a motorcycle for 3-5 years without protection. He used an airboat with protection. The Veteran reported police officer firearms training since 1998 with hearing protection. The Veteran complained of bilateral tinnitus acute/temporary tinnitus during basic training after weapons fire. His current tinnitus became noticeable in the 1970's. 

On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500, 1000, 2000, 3000, and 4000; RIGHT 25, 40, 70, 85, and 95; LEFT 30, 50, 70, 85, and 95. Speech audiometry revealed speech recognition score of 68 percent in the right ear and 64 percent in the left ear. The examiner stated that the Veteran's had normal to profound sensorineural hearing loss in the right ear, and mild to profound sensorineural hearing loss in the left ear. 

The examiner noted that the Veteran's tinnitus was likely a symptom of his hearing loss. The examiner provided the opinion that the Veteran's hearing loss and tinnitus were less likely caused by military noise exposure and more likely due to non-military etiologies such as aging, and significant long-term occupational and recreational noise, some without hearing protection. The examiner stated that the Veteran's hearing was normal at enlistment and at separation from service. He reported onset of current tinnitus more than 5 years after separation. It was stated that research studies have shown that hazardous noise exposure has an immediate effect on hearing. It does not have a delayed onset nor is it progressive or cumulative. The examiner cited several medical references in support of his opinion. 

In a March 2013 statement, a private physician, a Diplomate American Board of Internal Medicine and Specialist Geriatric, stated: "The hearing loss is more likely from his service related injury to ear from noise." 

Received at the April 2013 Travel Board hearing was a December 1998 private audiometric test that shows the Veteran had decreased bilateral hearing, described as from mild to profound. 

Analysis

The Board has reviewed the entire evidentiary evidence of record and finds that service connection for bilateral hearing loss and tinnitus is not warranted. 

The Veteran's service records show that from service entrance to service separation, his hearing levels were within normal limits. The service records are devoid of any complaints, diagnoses, or treatments consistent with an in-service incurrence of chronic hearing loss or tinnitus. It must be said that there was no hearing disability for VA purposes shown during service. 38 C.F.R. § 3.385. 

The first post-service evidence regarding hearing loss comes from a December 1998 audiometric test that shows the Veteran had decreased hearing levels, bilaterally, described as mild to profound. This is more than 33 years after his separation from service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). There is no evidence of record of a bilateral hearing loss within one year of service discharge, this does not warrant the presumption of service connection as its onset was beyond the presumptive period. 38 C.F.R. §§ 3.307 , 3.309(a). 

The Veteran was afforded a VA audiological examination in July 2009, by a VA audiologist who reviewed the file. The Veteran's reported exposure to gun and rifle fire during and after basic training was noted, along with reported post-service occupational and recreational noise exposure. The Veteran was diagnosed with bilateral sensorineural hearing loss, and it was opined that the Veteran's bilateral hearing loss and tinnitus disabilities were less likely than not related to his military service. The examiner stated that the disabilities were likely related to aging, and significant long-term occupational and recreational noise. The examiner provided a rationale and several medical references to support his opinion on the etiology of the Veteran's bilateral hearing loss and tinnitus. In sharp contrast in a March 2013 statement, a private physician opined that the Veteran's hearing loss was more likely related to a service injury from noise. 

It must be noted that in deciding whether the Veteran's current hearing loss and tinnitus are etiologically related to his active service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). 

The Board has considered these divergent opinions on the etiology of the Veteran's tinnitus and bilateral hearing loss. The Court has held on a number of occasions that a medical opinion which is premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"). However, the Board may not disregard a medical opinion solely on the rationale that it was based on a history given by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). 

The Board concludes that more probative weight must be given to the VA audiologist's opinion, that the Veteran's tinnitus and hearing loss disorders are less likely than not related to his military service. The private medical opinion is less probative as there is no indication from the statement that the Veteran's claims folder was reviewed. There is no apparent consideration or discussion of any service audiometric findings to include the Veteran's normal hearing that was shown at entrance and upon his service separation. Further, the physician's opinion is conclusory, without rationale, reasoning or supporting medical references. In contrast, the recent VA audiology examination and opinion is most probative since it shows that the examiner reviewed the entire file (including in service records), interviewed the Veteran, and performed an audiological evaluation. The examiner gave a reasoned opinion supported by facts and medical references, not just solely on the Veteran's statements. This VA examiner's opinion was based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale, which is where most of the probative value is derived, not from mere review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file). The overall evidence indicates that the Veteran's bilateral hearing loss and tinnitus are not related to claimed noise exposure sustained during his military service. 

The Board acknowledges that the Veteran believes he has a bilateral hearing loss disability as a result of noise exposure from service. The Board does not question his competent and credible assertion of exposure to acoustic trauma, including rifle and gun fire. In fact such exposure may even be conceded. However, the Veteran, as a layperson, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The preponderance of the evidence weighs against a finding linking his current bilateral hearing loss and tinnitus to such noise exposure. While the Veteran himself has stated his hearing loss and tinnitus are related to active service, and is competent to report (1) symptoms observable to a layperson, e.g., decreased hearing ability and ringing in the ears; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, his lay assertions of medical etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). 

Therefore, the preponderance of the evidence shows that bilateral hearing loss and tinnitus did not become manifest during service or for many years after service and are not related to claimed in-service noise exposure. As such, the benefit of the doubt rule does not apply, and the Veteran's claims must be denied. See 38 U.S.C.A. § 5107 (West 2002). 


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied. 



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs