Citation Nr: 1336998 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-20 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Miles J. Murphy III, Attorney at Law ATTORNEY FOR THE BOARD W. Spruill, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. FINDINGS OF FACT 1. The evidence of record demonstrates that bilateral hearing loss is not related to active duty service. 2. The evidence of record demonstrates that tinnitus is not related to active duty service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the veteran of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to the initial adjudication of the claims at issue herein, the RO's January 2009 letter advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman, 19 Vet. App. at 486. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is required to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and identified private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA is required to provide the Veteran with a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran was provided with a VA examination with regard to his bilateral hearing loss and tinnitus, and he has not indicated that he found the VA examination provided to be inadequate. Moreover, the Board finds that the VA examination and opinion provided is adequate, as it is based on a complete review of the Veteran's claims file, an interview with the Veteran, and a physical examination of the Veteran, and provides sufficient rationale to support the conclusion that the Veteran's bilateral hearing loss and tinnitus are not related to service. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the May 2009 VA audiologist did not convert the Veteran's puretone thresholds in the service audiograms dated prior to November 1967. However, when converted, these puretone thresholds show a smaller shift in decibels than when not converted. Thus, the examiner's finding that there was no significant change in his bilateral hearing sensitivity throughout service is not altered. Moreover, the Veteran's August 1969 separation examination does not require conversion and therefore, would not affect the examiner's conclusion that the Veteran exhibited normal hearing at separation. Accordingly, the audiologist's failure to convert the Veterans puretone thresholds does not affect the adequacy of the examiner's rationale. Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. 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, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. As such, the Board will address the merits of the Veteran's claims herein. The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus as a result of acoustic trauma in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including sensorineural hearing loss, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Veteran indicates that he experienced inservice noise exposure, including explosions, triggered wire booby traps, and exposure to gun fire and artillery while stationed in Vietnam. In his January 2009 claim, the Veteran asserted that during a routine search and destroy mission in December 1968, he encountered three land mines which caused acoustic trauma and gave rise to both of his disorders. Due to his proximity to these land mine explosions, the Veteran states that he experienced bilateral hearing loss that lasted two to three weeks during service. Lay statements received, in February 2009 and October 2010, from fellow service members R.K. and T.P., confirmed the Veteran's account of triggering booby traps, including a mine explosion. The Veteran's service treatment records do not show complaints of or treatment for bilateral hearing loss or tinnitus. Moreover, at no point was the Veteran shown to have impaired hearing during his military service. However, the Veteran and fellow soldiers have provided competent and credible statements that he had inservice noise exposure. Moreover, given the Veteran's military occupation as an infantryman and service in Vietnam, the Board accepts that he was exposed to loud noise during service and that he experienced temporary hearing loss following explosions. See 38 U.S.C.A. § 1154(a) (West 2002). In February 1966, the Veteran underwent a pre-induction examination. The Veteran's hearing acuity was deemed normal on clinical examination. Audiometric testing showed puretone thresholds, in decibels, as follows (puretone thresholds at 3000 Hz were not recorded): HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 15 (25) -- 10 (15) LEFT 10 (25) 15 (25) 10 (20) -- 10 (15) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO) -American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses). An October 1966 induction physical examination includes an audiogram showing puretone thresholds, in decibels, as follows (puretone thresholds at 3000 Hz were not recorded): HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -10 (0) -- -5 (0) LEFT 0 (15) -5 (5) -10 (0) -- 15 (10) On examination for entry into officer candidate school in November 1966, the Veteran's puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) 0 (10) 10 (20) 15 (20) LEFT 15 (30) 0 (10) -5 (5) 0 (10) 20 (25) In August 1969, the Veteran underwent a separation physical examination, including audiometric testing. The Veteran was found to have normal hearing on clinical evaluation. In a report of medical history, completed at that time, he denied a history of hearing loss. The examination report shows puretone thresholds, in decibels, as follows (puretone thresholds at 3000 Hz were not recorded): HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 -- 15 LEFT 10 10 10 -- 30 Apart from the two weeks of hearing loss following proximity to a land mine explosion, the Veteran has not stated that hearing loss and tinnitus were present in service or since service separation. Rather, as reported in the May 2009 VA examination report, his current hearing loss and tinnitus had an onset of 25 years later. The earliest post-service documentation of the Veteran's bilateral hearing loss and tinnitus is in March 2001 and April 2003. The Veteran underwent private audiological examinations, including puretone threshold testing, showing bilateral hearing loss. Noise exposure from music, firearms, engines, farming, and prior jobs was identified, with occasional use of hearing protection. Ringing in the ears was also reported. In May 2009, the Veteran underwent a VA audiology examination, including audiometric testing revealing puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 65 60 65 LEFT 15 10 20 55 55 The VA examiner diagnosed normal to moderately severe bilateral hearing loss, and bilateral tinnitus. See 38 C.F.R. § 3.385. Based upon review of the Veteran's claims folder and current examination of the Veteran, the VA examiner opined that the Veteran's current bilateral hearing loss and tinnitus were "not caused by or a result of his military noise exposure, nor were they aggravated by his history of military noise exposure." The VA examiner noted that the Veteran's service audiograms showed he entered active service with normal bilateral hearing sensitivity and exited military duty with normal bilateral hearing sensitivity. The examiner explained that based on his service audiograms, there was no statistically significant change in his bilateral hearing sensitivity throughout service. The examiner further explained that this was consistent with research studies and textbooks on noise-induced hearing loss, which show that hazardous noise exposure has an immediate effect on hearing, and is usually temporary at first, but does not have a delayed onset nor is it progressive or cumulative. The VA examiner noted that the Veteran reported a history of recreational noise exposure in civilian life as a right-handed shooter of firearms and intermittent noise exposure on the floor of an automobile plant. The Veteran also reported that his hearing loss and tinnitus began approximately 15 years before the date of this examination, marking the onset of both conditions approximately 25 years after his military separation. The examiner further opined that the Veteran's bilateral hearing loss and tinnitus were "more likely than not caused by and a result of his history of recreational noise exposure" and "intermittent noise exposure on the floor of the auto plant where he [worked]" after separation from active service. After a thorough review of the evidence of record, the Board concludes that service connection for bilateral hearing loss and tinnitus is not warranted. Because bilateral hearing loss did not manifest within one year of separation from service, service connection is not warranted on a presumptive basis. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, the evidence does not show, and the Veteran does not contend, that he has had symptoms of bilateral hearing loss continuously since service. During the May 2009 VA examination, the Veteran reported that his bilateral hearing loss and tinnitus began approximately ten to fifteen years before. Thus, by the Veteran's own report, the earliest he began experiencing bilateral hearing loss and tinnitus was approximately 1994, 25 years after service discharge. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Accordingly, there is no evidence of continuity of symptomatology of bilateral hearing loss since service discharge. See Barr, 21 Vet. App. at 307. Thus, service connection is not warranted under 3.303(b). The evidence of record does not otherwise support a nexus between the Veteran's inservice noise exposure and temporary hearing loss, and his current bilateral hearing loss and tinnitus. The Veteran's contention that his current bilateral hearing loss and tinnitus are related to acoustic trauma and inservice noise exposure cannot be considered competent evidence, as this is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer). As a lay person, the Veteran does not have the medical training or expertise to provide a competent opinion as to whether his current disorders are related to inservice noise exposure. Consequently, the Veteran's assertions do not constitute competent evidence of etiology in this case. In this, and in other cases, only competent evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only competent evidence of record which addresses the etiology of the Veteran's bilateral hearing loss and tinnitus is the May 2009 VA examination report, in which the examiner concluded that the Veteran's bilateral hearing loss and tinnitus are not related to his active duty service. The examination was based on review of the Veteran's claims file, as well as consideration of the Veteran's lay statements, medical history, and physical examination of the Veteran. In addition, the examiner provided sufficient rationale to support the conclusion reached. The Board finds the May 2009 VA examiner's opinion to be highly probative and outweighs the Veteran's lay opinion. In the absence of any competent and probative medical evidence that the Veteran's bilateral hearing loss or tinnitus are related to his inservice noise exposure and temporary hearing loss during active duty service, service connection for bilateral hearing loss and tinnitus is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs