Citation Nr: 1336268	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  11-16 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for left ear hearing loss.

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Jenkins, Associate Counsel 



INTRODUCTION

The Veteran had active service from June 1971 to June 1975.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

The issue of entitlement to service connection for right ear hearing loss is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required on his part.


FINDINGS OF FACT

1.  The competent evidence of record reflects that the Veteran does not have a left ear hearing loss disability for VA compensation purposes.  

2.  The most probative evidence of record fails to establish that it is at least as likely as not that the Veteran's tinnitus is related to active service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for left ear 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 not 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 June 2009, 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 June 2009 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 with regard to the issues adjudicated on the merits herein.  The Veteran's service treatment records and post-service medical treatment are of record.  VA provided the Veteran with an audiological examination in August 2009 and a subsequent addendum opinion was obtained in October 2009.  The examination reports and addendum reflect that the examiner reviewed the Veteran's claim file, recorded his current complaints, conducted an appropriate examination, and rendered an appropriate diagnosis and opinion with rationale consistent with the remainder of the evidence of record.  

In his August 2010 notice of disagreement, the Veteran asserted that the VA examiner incorrectly noted that the Veteran reported that he worked for 12 years in housekeeping with significant noise exposure.  The Veteran contends that his work in housekeeping involved nothing louder than a vacuum cleaner, which he asserts does not constitute significant noise exposure.  While the Board acknowledges that the Veteran is competent to report the type of noise he was exposed to post-service, he is not competent to assess the severity or significance of his noise exposure.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  Assessing the severity of noise exposure and determining what type and level of noise can adversely affect hearing concerns internal physical processes that extend beyond an immediately observable cause-and-effect relationship.  Accordingly, it is a complex medical question that requires competent medical evidence.  As such, the Veteran, as a lay person without demonstrated requisite medical training or knowledge, is not competent to address whether the noise from a vacuum cleaner constitutes significant noise exposure, and his lay statement on the issue carries no probative value.  Additionally, based on the presumption of regularity the Board will presume that the VA examiner correctly documented and considered the Veteran's reported history of noise exposure prior to determining that it constituted significant post-service noise exposure.  See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)).  The Board finds that the VA examination reports and opinions, taken together, are adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

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.  


Legal Criteria

Service connection may be established for a disability resulting from a disease or injury 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).

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).


Left ear Hearing Loss

The Veteran claims that he has a left ear hearing loss disability that is related to his period of active service, including in-service noise exposure.

A June 2009 private audiologist report shows that the Veteran has left ear hearing loss, mild to moderately severe in degree, with a noise notch, peaking at 6000 hertz.  

The report of an August 2009 VA audiological examination does not reflect that the Veteran has left ear hearing loss disability in accordance with 38 C.F.R. § 3.385 (2013).  The examiner noted that the Veteran had a mild loss at 500 Hz in the left ear at his time of induction with all other test frequencies normal bilaterally.  At the August 2009 audiological examination, the Veteran's left ear pure threshold values were as follows:


HERTZ

500
1000
2000
3000
4000
LEFT
15
10
10
30
35

The Veteran's speech recognition ability using the Maryland CNC word list was 94 percent in the left ear.  

The Board recognizes that the Veteran believes he has a left ear hearing loss disability for VA purposes.  However, diminished hearing is not synonymous with a hearing loss disability for VA purposes.  The Court in Hensley v. Brown, noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  5 Vet. App. 155, 157 (1993).  However, not all hearing loss constitutes hearing loss "disability" for VA purposes.  The Board may not grant the Veteran service connection, even at a noncompensable level, when the standard for a disability has not been met.  The evidence of record establishes that the Veteran's left ear hearing loss is not at the level of a hearing loss "disability" for VA purposes.  38 C.F.R. § 3.385 (2013).  The Veteran's pure threshold values demonstrate that the Veteran's left ear hearing loss is not 40 decibels or greater; he does not have auditory thresholds in at least three frequencies of 26 decibels or greater; and his left ear speech recognition scores is not less than 94 percent.  Id.  Accordingly, Shedden element (1) is not met and the Veteran's claim for service connection for left ear hearing loss must be denied.  

Tinnitus 

The Veteran claims that his current diagnosis of tinnitus is related to his period of active service, including in-service noise exposure.  In his June 2011 "Addendum to Form 9," the Veteran reported that he definitely had tinnitus while in active service.  The Veteran also reported that he could not remember a time when he had not needed to create white noise to sleep.  The Veteran also noted that he thought the tinnitus was part of his hearing loss and not something that was dealt with separately. 

The Veteran has a current diagnosis of bilateral tinnitus.  Accordingly, Shedden element (1) has been demonstrated.  

The Veteran's service treatment records are devoid of any 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 specialty was as an Aircraft Mechanic, which is an occupation traditionally associated with a high probability of in-service noise exposure.  See VBA Fast Letter 10-35 (September 2010).  Additionally, the Veteran is competent to report tinnitus.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Accordingly, noise exposure is conceded and Shedden element (2) has been demonstrated.  

Concerning Shedden element (3), evidence of a nexus between the Veteran's currently diagnosed tinnitus and his in-service noise exposure, the Board finds that the most probative evidence of record weighs against service connection.  

Following service, complaints regarding tinnitus were first documented in an August 1987 VA treatment record.  The VA treatment record noted that the Veteran reported that he noticed tinnitus two years before, or approximately in 1985.  The treatment record noted that the Veteran complained of constant ringing in his ears and high frequency hearing loss.  The examiner recommended that the Veteran be evaluated by an audiologist.  The August 1987 audiologist report noted that the Veteran's tinnitus was explained and discussed, however, an etiology opinion was not provided.   

The Veteran was provided a VA examination in August 2009.  As previously discussed, the examiner noted the Veteran's reported history of in-service and post-service noise exposure.  The examiner also noted that the Veteran reported that his tinnitus began in 1974, and that he felt it was related to his in-service exposure to jet engine noise.  The examiner opined that the Veteran's tinnitus was less likely than not related to acoustic trauma during military service.  The examiner noted that there were no medical records indicating that the Veteran's tinnitus began while in active service, or shortly thereafter and that the first evidence of tinnitus was not until June 2009.  The examiner explained that based on the lack of supporting documentation and normal hearing at discharge, it was the examiner's opinion that the Veteran's tinnitus was less likely than not related to his military service. 

A VA addendum opinion was obtained in October 2009.  After reviewing newly submitted evidence, the same examiner again opined that the Veteran's tinnitus was less likely as not caused by or a result of noise exposure while in active service.  The examiner noted that an August 1987 VA treatment record indicated that the Veteran reported onset of tinnitus two years before.  The examiner also noted that the date of onset was 1985, which was approximately 10 years following discharge.  The examiner explained that this onset was too remote in time to be related to the Veteran's military noise exposure.  In this regard, the Board notes that the examiner had previously noted that this opinion was additionally based on the lack of supporting documentation and normal hearing at discharge.  In this regard, although the examiner added that tinnitus related to noise would have been expected to have an onset at the time of the noise exposure, or within one year following the exposure, this statement does not warrant a finding that the negative nexus opinion was based on an inaccurate factual premise as the VA examiner's opinion was clearly based on the combination of negative service treatment records, diminished credibility of the Veteran's assertions as to onset in service due to conflicting statements of record in that regard, and the lack of supporting documentation. 

After reviewing all the evidence, the Board finds that the most probative evidence weighs against granting service connection for tinnitus.  Regarding the etiology of the Veteran's tinnitus, the Board finds that the opinion and addendum opinions by the VA examiner are the most probative evidence.  The opinions were provided after reviewing the entire claims file, including the Veteran's statements regarding his in-service and post-service noise exposure, and experiencing tinnitus in service.  The examiner provided two negative nexus opinions and the rationales for the examiner's opinions were consistent and thoroughly explained.  As the examiner's opinions followed an extensive examination of the Veteran and the Veteran's claims file, as well as consideration of reported medical history, the opinions are accorded great probative weight.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that 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 tinnitus is related to his period of active service, to include his in-service noise exposure.  The Board acknowledges that the Veteran is competent to report his symptoms, including in service, and even diagnose tinnitus because his knowledge of his symptoms comes to him through his senses.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses and cautioning that lay testimony that Veteran suffered a particular illness, bronchial asthma, was not competent because matter required medical expertise); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to ringing in the ears (tinnitus) which is capable of lay observation); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007).  However, the Board notes that the Veteran is a poor historian regarding the onset of his tinnitus.  During his August 1987 VA treatment and audiology consultation, he reported that he first noticed tinnitus two years before.  Subsequently, in his August 2009 VA examination, the Veteran reported that his tinnitus began in 1974.  In his June 2011 "Addendum to Form 9," the Veteran reported that he definitely had tinnitus while still on active duty, but did not provide a specific year of onset.  The lack of consistency in the Veteran's statements raises questions about the reliability and credibility of his recollections regarding the onset of his tinnitus.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board can consider bias in lay evidence, conflicting statements of the Veteran, and the significant time delay between the affiants' observations and the date on which the statements were provided in weighing credibility).  

Additionally, the Board finds that the Veteran is not competent to provide an opinion regarding the etiology of his tinnitus.  Where, as here, the determinative question involves a nexus or causation, and a lay assertion on medical causation is not competent evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion.  38 C.F.R. § 3.159 (2013).  Nothing in the record suggests that the Veteran possesses appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his tinnitus.  His statements are not competent medical evidence on the question of causation and are of no probative weight.  Even if the Veteran was competent to render such an opinion as to the etiology of his tinnitus, the Board finds that the VA examiner's opinions are more probative.  As noted above, the VA opinions were provided by a skilled medical professional, the opinions included detailed rationales, and are uncontroverted by any probative medical evidence.  For reasons outlined above, the Veteran's assertions as to etiology are not considered credible.

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 tinnitus is not warranted.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).


ORDER

Entitlement to service connection for left ear hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

The medical evidence shows that the Veteran has current right ear hearing loss disability in accordance with 38 C.F.R. § 3.385 (2013).  Further, the Veteran's DD Form 214 shows that his specialty was as an Aircraft mechanic, which is an occupation traditionally associated with a high probability of in-service noise exposure.  See VBA Fast Letter 10-35 (September 2010).  In his May 2009 statement in support of his claim, the Veteran reported that he worked with fighter jets, and worked fueling aircrafts while the engines were running.  The Veteran also reported that it was sometimes necessary to remove his hearing protection to talk with other airmen.  The Board notes that the Veteran is competent to describe his in-service noise exposure and acoustic trauma.  

As to a relationship between current right ear hearing loss and acoustic trauma in service, there are multiple medical opinions of record.  The first is a June 2009 private audiologist report.  The audiology report noted the Veteran reported that he was previously diagnosed with and treated for Meniere's disease in his right ear.  The audiologist acknowledged that the Veteran reported that he served in the Navy as an aircraft mechanic and had in-service noise exposure.  The audiologist' report also noted that post-service, the Veteran reported that he had worked in the VA carpentry shop for over 30 years, but that he wore hearing protection when doing noisy work.  The audiologist diagnosed the Veteran with asymmetrical sensorineural hearing loss, and opined that the right ear hearing loss was more than likely secondary to his previously diagnosed Meniere's disease.  No rationale was provided for the opinion attributing the etiology of the right ear hearing loss to prior Meniere's disease versus in-service noise exposure.

The Veteran was provided with a VA audiological examination in August 2009.  The examiner noted that the Veteran reported that he worked as an aircraft mechanic and was exposed to aircraft noise while in active service.  In regard to post-service noise exposure, the Veteran reported that he performed handwork on molding at a car factory for eight years without significant noise exposure.  He also reported that he worked 12 years in housekeeping at the Tomah VA, which the VA audiologist noted involved significant noise exposure.  The Veteran reported that he worked in the Tomah VA carpenter shop since 1997 where he used power tools but wore hearing protection.  The Veteran reported that he had no identifiable recreational noise exposure.  The Veteran reported that in 2002 Dr. W. of Franciscan Skemp diagnosed him with Meniere's disease in his right ear.  

The examiner opined that the Veteran's hearing loss was 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 noise induced hearing loss would have had an immediate presence following the noise exposure.  The examiner stated that this ruled out military noise exposure as the cause of the Veteran's right ear hearing loss. 

The absence of demonstration of right ear hearing loss in service does not preclude service connection if is demonstrated that it is at least as likely as not that current right ear hearing loss disability is etiologically related to service, to include with consideration of continuity of symptomatology.  38 C.F.R. § 3.303(d).  In establishing continuity of symptomatology, the Veteran's competent assertions as to observing right ear hearing loss since service are for consideration.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  (Sensorineural hearing loss, as an organic disease of the nervous system, is a chronic disease listed at 38 C.F.R. § 3.309.)  The VA examiner's opinion does not reflect consideration of the Veteran's assertions as to continuity of right ear hearing loss since service.  In view of the foregoing, the Board finds that the VA examiner's opinion as to the etiology of the right ear hearing loss disability is based on an inaccurate factual premise (namely that the absence of right ear hearing loss in service ruled out military noise exposure as the cause of the right ear hearing loss), and an inadequate factual premise (namely failure to consider the Veteran's assertions of continuity of symptomatology).


Accordingly, the case is REMANDED for the following action:

1.  Forward the Veteran's claims folder to the August 2009 VA examiner, or appropriate substitute if unavailable, and request an addendum opinion as to whether it is at least as likely as not that current right ear hearing loss disability is etiologically related to acoustic trauma in service.  Rationale must be provided for the opinion proffered.  In rendering the requested opinion and rationale, the examiner must note that absence of demonstration of right ear hearing loss in service does not preclude service connection if is demonstrated that it is at least as likely as not that current right ear hearing loss disability is etiologically related to service, to include with consideration of the Veteran's competent assertions of continuity of symptomatology.  

If additional examination of the Veteran is deemed warranted by the VA clinician in order to render the requested opinion, such examination should be scheduled.

2.  After the development requested above has been completed to the extent possible, readjudicate the claim for service connection for right ear hearing loss.  If the benefit sought on appeal is not granted, the Veteran and representative, if any, should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs