Citation Nr: 1336828	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  12-32 120	)	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

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from February 27, 1962, to August 26, 1962; June 11, 1963, to June 23, 1963; and September 10, 1963, to September 12, 1963.  The Veteran had additional service in the Army National Guard.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal.

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS.  The Board has reviewed both the paper and electronic claims files in rendering this decision.


FINDINGS OF FACT

1.  The preponderance of the evidence is against finding that the Veteran has a bilateral hearing loss disability that is etiologically related to a disease, injury, or event in service.

2.  The preponderance of the evidence is against finding that the Veteran has a tinnitus disability that is etiologically related to a disease, injury, or event in service.


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was not incurred in or aggravated by active service, nor may it be presumed to have occurred therein.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2.  A tinnitus disability was not incurred in or aggravated by service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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, all the evidence submitted by or on behalf of the Veteran.  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 claim.  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 Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (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; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

A VCAA letter dated in February 2011 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced National Service Organization and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and service personnel records are in the file, as well as a private audiogram.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims.  38 C.F.R. § 3.159(c)(4)(i) (2013).  

In this case, the Veteran was provided a VA examination in April 2011.  The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and by conducting a physical examination.  Based on the foregoing, the examiner concluded that the Veteran's bilateral hearing loss and tinnitus were not due to or aggravated by an event, disease, or injury incurred during active service.  As the opinions were based on review of the claims file, including the Veteran's statements, and included an extensive rationale for the opinions provided, the Board concludes that the opinions provided are adequate.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims.

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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

In order to show a 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2013).

Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). 

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id at 159.

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.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

Factual Background and Analysis 

The Veteran contends that during his limited periods of active duty, he was exposed to significant noise exposure and this has caused his current bilateral hearing loss and tinnitus.  

The Board finds that based upon the Veteran's service in a field artillery unit (as shown in his service personnel records), in-service noise exposure is conceded.  Additionally, there is no question that the Veteran has a current hearing loss disability as described in 38 C.F.R. § 3.385.  This is clearly shown in the February 2011 private audiogram report and the April 2011 VA examination report.  Thus, the main question before the Board is whether the Veteran's current bilateral hearing loss and tinnitus are related to an event, injury, or disease during service.  For the reasons discussed below, the Board finds they are not.  

A review of the Veteran's service treatment records show no complaints for or treatment related to hearing-related problems or ringing in the ears.  Enlistment medical examination, dated in November 1961, showed normal whispered voice testing (15/15).  

Physical examination, dated in August 1962, did not show any bilateral hearing loss problems or tinnitus.  The Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
X
0
LEFT
0
0
0
X
0
In his own report of medical history dated that same month, the Veteran specifically denied any ear trouble.  

The only post-service treatment record associated with the claims file showing a hearing loss disability is dated in February 2011.  This record clearly shows a hearing loss disability for VA purposes, but there is no commentary by the audiologist as to its etiology.  In his February 2011 service-connection claim, the Veteran indicated the onset of his bilateral hearing loss and tinnitus was in June 1962.  

In April 2011, the Veteran was afforded a VA audiological examination, during which he was diagnosed as having bilateral sensorineural hearing loss and tinnitus.  Following review of the claims file, and interview and physical examination of the Veteran, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not related to his military service.  In reaching this conclusion, the examiner pointed to the Veteran's significant post-service, occupational noise exposure.  Namely, the Veteran had reported 20 years of occupational noise while working in a sign manufacturing plant and 18 years employment in law enforcement with periodic weapons qualifications.  The Veteran indicated that he was not provided hearing protection during service, but usually wore hearing protection in his post-service occupations.  The Veteran denied any recreational noise exposure.  The examiner also noted that the Veteran's service treatment records show hearing completely within normal limits during his 1962 period of active duty and he only served for a total of 14 days in 1963.  She further noted that the Veteran had a significant history of occupational noise exposure.  Finally, she indicated that sensorineural hearing loss is cumulative in nature, and in her opinion, the Veteran's current hearing loss is most likely related to the long history of post-service occupational noise exposure and less likely than not due to his noise exposure during service.  

There are no additional private or VA treatment records showing treatment for hearing problems/tinnitus, nor have any clinicians attributed the Veteran's claimed hearing loss and tinnitus to his military noise exposure.  

Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claims for service connection for bilateral hearing loss and tinnitus.  

Initially, the Board notes that there is a remarkable lack of credible evidence of hearing loss and tinnitus pathology during service and for many years following separation.  Notably, the earliest clinical evidence of record showing bilateral hearing loss and tinnitus is dated in 2011.  The service treatment records are negative for hearing loss and tinnitus complaints.  The Veteran has not indicated any other treatment for hearing problems/tinnitus.  Because sensorineural hearing loss was not shown to a compensable degree within one year of separation, presumptive service connection for a chronic disease is not warranted.

The grant of service connection, therefore, requires competent evidence relating the diagnosis of hearing loss to the Veteran's service.  Although the evidence record shows a current bilateral hearing loss and tinnitus, it does not contain reliable evidence which relates the claimed disabilities to any event, injury, or disease in service.  

The Board finds that the opinions expressed in the April 2011 VA audiologist's examination report of significant probative value.  She discussed the pertinent evidence, noting that the enlistment and separation examinations showed normal hearing (for VA purposes).  In essence, despite examining the Veteran, obtaining a history from him, and reviewing pertinent service and post-service records, the examiner was unable to link the Veteran's bilateral hearing loss disability and tinnitus to his military service-even after conceding the Veteran had noise exposure during service.  The Board finds the 2011 examiner's opinion to be highly probative regarding the etiology of the Veteran's bilateral hearing loss and tinnitus.  The probative nature of the 2011 opinion is based on the fact that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact.  The Board thus finds the VA examiner's conclusion that the Veteran's bilateral hearing loss and tinnitus are less likely than not related to his service to be of greater probative value than the Veteran's unsupported statements.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  
In other words, the Board has considered whether self-reported continuity of symptomatology of hearing loss and tinnitus dating back to service would be sufficient to warrant service connection.  In this regard, the Veteran is certainly competent to report that he experiences difficulty hearing or ringing in his ears.  See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002).  However, even where a veteran asserts continuity of symptomatology since service, he is not necessarily competent to establish a nexus between the continuous symptomatology and the currently claimed conditions.  See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom.  McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495- 98 (1997).  Furthermore, it must also be considered that the Veteran is recalling events that occurred approximately five decades ago.  In other words, even taking into account the Veteran's assertions, the Board ultimately finds the most probative evidence of record regarding the etiology of his hearing loss and tinnitus to be the opinion of the competent VA healthcare provider.  As noted, the VA examiner considered the Veteran's assertions regarding the onset of his complaints, but also considered the nature of post-service noise exposure (38 years), and the nature and severity of his current bilateral hearing loss and tinnitus as demonstrated on audiometric testing.  

In summary, the Board finds that the negative record at service discharge and in the years following service is more probative than the Veteran's more recent statements.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Absent competent and reliable lay or medical evidence relating these claimed disabilities to service, and in consideration of the VA opinion discussed above, the Board concludes that the claims of entitlement to service connection for hearing loss and tinnitus must be denied.  The preponderance of the evidence is against the Veteran's claims and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102.



ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.  



____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs