Citation Nr: 1336924 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-04 404A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. He appealed to the Board of Veterans Appeals (Board/BVA) from October 2008 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Board remanded these claims for further development, including especially to attempt to obtain outstanding service treatment records (STRs) and July 2009 statements from the National Personnel Records Center (NPRC) or other appropriate source since the Veteran claimed to have been seen at Ft. Leonard Wood, Missouri, concerning his hearing impairment. All directed development since has been completed, at least as concerning the claim of entitlement to service connection for tinnitus. Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). So the Board is going ahead and deciding this tinnitus claim. The remaining claim for bilateral hearing loss, however, requires still further development and consideration, so the Board is again remanding the hearing loss claim to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran did not begin experiencing tinnitus until many decades after his military service and this condition is not shown to be etiologically related to his service, including especially to repeated exposure to loud noise and consequent injury to his ears (i.e., acoustic trauma). CONCLUSION OF LAW His tinnitus was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, the notice requirements of the VCAA require VA to notify the claimant of the information or evidence necessary to substantiate the claim, including apprising him of what subset of the necessary information or evidence he is to provide versus the subset of the necessary information or evidence that VA, instead, will attempt to obtain for him. The so-called "fourth element" of the notice requesting that he also provide any evidence in his possession pertaining to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that these 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: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date. To this end, in April 2008 the RO sent the Veteran a VCAA notice letter that complied with these obligations. It is equally worth mentioning the RO sent that letter prior to initially adjudicating his tinnitus claim, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). He therefore has received all required notice concerning this claim and in the ideal order. The Board also finds that VA has made the required reasonable efforts to assist him in obtaining evidence necessary to substantiate this claim, and therefore appellate review of this claim may proceed without prejudicing him. 38 U.S.C.A. § 5103A; Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO has obtained his STRs and post-service VA clinical records. The file also contains his personal lay statements, and he has been afforded an adequate medical examination in furtherance of his claim - including especially for a medical nexus opinion regarding the alleged relationship between his tinnitus and military service. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Significantly, neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. Hence, no further notice or assistance with this claim is required. 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). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Governing Statutes, Regulations, and Case Law Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection therefore generally requires having: (1) competent and credible evidence confirming the existence of the claimed disability or, at the very least, showing the Veteran has had it at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently-claimed disability, which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. In the absence of proof of a present disability there necessarily can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Competency of evidence differs from its credibility and ultimate weight. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although this is not determinative of an opinion's probative value. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative because this is just as well tantamount to saying "may not" or "could not". See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran). Indeed, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. But recognizing this, it is equally true the Board may reject a medical opinion based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in detail, certainly not exhaustive 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The STRs contain no complaints or diagnosis of tinnitus at any time during the Veteran's service from November 1966 to November 1968. In the many years since his service, he has had a VA audiologic examination in August 2009. He complained of unsafe military-type noise exposure as well as civilian noise exposure as a carpenter and farmer. He told the examiner that the tinnitus now claimed had begun just approximately 10 years before that evaluation, so in 1999 or thereabouts. The examiner concluded the tinnitus was unrelated to the Veteran's service, so including the noise exposure alleged, because he did not associate his tinnitus with his service and because it began too many years after his service for it to have been caused by his service. Based on this VA compensation examiner's unfavorable medical opinion, the Board finds that the Veteran's tinnitus was not incurred during his military service. The evidence does not reflect, and indeed he does not contend, that his tinnitus actually began during his service. Instead, he readily concedes that he did not begin experiencing this condition or its effects or associated symptoms until long after his military service had ended. As such, there is no showing this condition was directly incurred during his service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). But it also is not shown that his tinnitus is otherwise related to his service, even accepting that it was not first diagnosed or complained about until long after his service. 38 C.F.R. § 3.303(d). Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of tinnitus like this ringing, buzzing, roaring, or clicking sound mentioned. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). As a layman, however, he is unable to provide competent evidence or testimony regarding the origins of his tinnitus because, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the origins of tinnitus fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board does not find his assertions regarding a relationship or correlation (i.e., nexus) between his military service and his current tinnitus to be probative. Also, notably, since tinnitus is not a "chronic disease" according to 38 C.F.R. § 3.309(a), the Veteran cannot establish the required linkage between this condition and his military service even by alternatively showing he has experienced continuous tinnitus (continuity of symptomatology) since his service under the provisions of 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Moreover, because his tinnitus is not a "chronic disease" per se according to 38 C.F.R. § 3.309(a), there equally is no means of presuming it was incurred during his service, even on the chance it initially manifested to the required minimum compensable degree of at least 10-percent disabling within the year following the conclusion of his service, so by November 1969. Rather, the only competent and credible medical opinion of record is the August 2009 VA compensation examiner's, who completely disassociated the Veteran's tinnitus from anything that had occurred during his military service. The examiner took into account the relevant history of this condition, including as the Veteran himself had recounted in the course of that evaluation, as well as the STRs and other relevant evidence in the file. Based on a comprehensive review of the pertinent evidence, the examiner determined the Veteran's tinnitus was unrelated to his service. The examiner also, most importantly, provided the required explanatory rationale for his unfavorable opinion. So there is not an approximate balance of positive and negative evidence concerning this claim to permit application of the benefit-of-the-doubt doctrine. Instead, the preponderance of the evidence is against this claim, so it must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim of entitlement to service connection for tinnitus is denied. REMAND Regarding the Veteran's remaining claim of entitlement to service connection for bilateral (left and right ear) hearing loss, the August 2009 VA compensation examination also concerned this other alleged disability. The August 2009 examiner determined the Veteran had bilateral high frequency sensorineural hearing loss. But the examiner ultimately concluded the Veteran's bilateral sensorineural hearing loss was unrelated to his service. Thus, like the tinnitus, the examiner also disassociated the bilateral hearing loss from the Veteran's service. And this is the reason the RO denied this other claim. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As the basis for this unfavorable opinion, the examiner pointed out that the Veteran's STRs did not show hearing loss. Specifically, the examiner indicated that the Veteran's hearing was normal both at time of entry and upon separation from service, which he explained "clearly" indicated the Veteran's hearing loss did not occur in service. Thus, the examiner determined that it was "less likely than not" the Veteran's current bilateral hearing loss was related to his service. In establishing entitlement to service connection, however, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 (2013) have been demonstrated during service, or even in the case of sensorineural hearing loss in particular within the one-year presumptive period following discharge from service (as an organic disease of the nervous system), although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability. If, as here, there is current ratable hearing loss disability, then service connection is possible if this current disability can be adequately linked to the Veteran's military service - as opposed to other unrelated factors ("intercurrent causes"). Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385 ), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). It therefore is possible to show entitlement to service connection for hearing loss even where the initial showing or diagnosis of hearing loss was not until after service. 38 C.F.R. § 3.303(d). The August 2009 VA examiner did not take into consideration the Veteran's reports of repeated exposure to excessively loud noise in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). If, as seems to be the case, the examiner believes there is no such thing as "delayed-onset" hearing loss, then he needs to cite to some medical authority for this view - such as the report of the Institute of Medicine (IOM). The Court has held that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one and allows the Board to weigh the opinion against others. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. That said, the Federal Circuit Court also has pointed out that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record"). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Still, though, one must also recognize that a Veteran is competent to report what occurred in service, such as exposure to artillery firings, because testimony regarding first-hand knowledge of a factual matter is competent. See Washington v. Nicholson, 19 Vet. App. 363 (2005). The Board inevitably will have to assess the credibility of his lay testimony concerning this, so not just his competency, in determining the ultimate probative value of his lay testimony. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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")). Consequently, another VA compensation examination and opinion are needed concerning whether the Veteran's bilateral hearing loss is attributable to his military service - and, in particular, to his claimed noise exposure, as opposed to other unrelated factors. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability). Service department audiometric readings prior to October 31, 1967 must be converted from American Standards Association (ASA) to the standards set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). This requires adding 15, 10, 10, 10 and 5 dB to the observed result for the frequencies of 500, 1000, 2000, 3000 and 4000 Hz, respectively. Accordingly, this hearing loss claim is again REMANDED for the following additional development and consideration: 1. Schedule another VA audiologic evaluation for further medical comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's bilateral sensorineural hearing loss is related or attributable to his military service from November 1966 to November 1968 or initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year, so by November 1969, to alternatively warrant presuming it was incurred during his service. In making this necessary determination of causation, the VA examiner must address the Veteran's claimed in-service noise exposure. The examiner should keep in mind that service department audiometric readings prior to October 31, 1967 must be converted from ASA to the standards set by the ISO-ANSI. Therefore, audiologic test results prior to October 31, 1967 have been converted to ISO-ANSI standards by adding 15, 10, 10, 10 and 5 dB to the observed result for the frequencies of 500, 1000, 2000, 3000 and 4000 Hz, respectively. The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The VA examiner should remain mindful that lay evidence is potentially competent to support the presence of the claimed disability, during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records. Thus, the examiner cannot consider the absence of any treatment for hearing loss, such as in the STRs, as entirely determinative of whether the Veteran's current hearing loss dates back to his service or is related to or the result of his service. This is not to say the examiner cannot consider the absence of any objective indication of hearing loss during service or within the one-year presumptive period after as one of the reasons or factors for disassociating any current hearing loss from service, just that this cannot be the only or sole reason for this conclusion. If, as the August 2009 VA compensation examiner seemingly concluded, there is no such thing as "delayed-onset" hearing loss, then this additional examiner needs to cite to some medical authority for this view - such as the report of the Institute of Medicine (IOM). The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 2. Then readjudicate this claim of entitlement to service connection for bilateral hearing loss in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 or by the Court 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs