Citation Nr: 1337260 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-00 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Sadia Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to March 1967. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision issued in May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for bilateral hearing loss and tinnitus. In January 2013, the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a videoconference hearing. A transcript of that hearing has been associated with the claims file. VA treatment records dated through April 2012 were reviewed by the RO as reflected in the April 2012 supplemental statement of the case (SSOC). VA treatment records dated April 2012 through October 2013 have not been reviewed by the RO. The Veteran is not prejudiced by the Board's review of this evidence in the first instance as the treatment records do not address a relationship between acoustic trauma in service and the current disabilities. See Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed a hearing loss disability as defined by VA regulations as a result of his active service. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran developed tinnitus as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 1. The criteria for a grant of service connection for bilateral tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran was notified in a January 2010 letter, prior to the initial adjudication, of the information and evidence needed to substantiate a claim for service connection. The letter informed 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013). The letter also provided notice of the information generally pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The notice requirements of the VCAA have been satisfied. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013). VA also has a duty to assist the Veteran in the development of his claim. This duty includes assistance with obtaining in-service and post-service treatment records, as well as providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2013). Here, all identified and available treatment records have been associated with the claims file, to specifically include the Veteran's service treatment records and post-service VA treatment records. 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(c) (2013). The Veteran indicated during the January 2013 hearing that he has not received private treatment for his hearing loss and tinnitus. The Veteran was provided with a VA examination in April 2010. The April 2010 examination report reflects that the examiner reviewed the Veteran's past medical history, recorded the Veteran's current complaints, conducted an appropriate evaluation of the Veteran, and rendered a diagnosis and opinion supported by a thorough rationale. Therefore, the examination report is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has also been afforded a hearing before the undersigned AVLJ, in which he presented oral argument in support of his service connection claims for bilateral hearing loss and tinnitus. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the AVLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the AVLJ identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection for hearing loss and tinnitus. The Veteran volunteered his history of symptoms and treatment. In addition, the AVLJ, through specific pertinent questioning, sought to identify any pertinent evidence not currently associated with the claims file that may have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the AVLJ hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran provided testimony relevant to those elements. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. As such, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. Service Connection 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is recognized as chronic under 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2013). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, of 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2013). In the instant case, the April 2010 VA examination report demonstrates that the Veteran has a current hearing loss disability and tinnitus. With respect to in-service acoustic trauma, the Veteran has alleged he was exposed to excessive noise as a "recon scout," where he did not wear ear plugs while directing fire. See December 2009 claim and January 2010 Veteran's lay statement. The Board finds that this description of duties is consistent with the nature and circumstances of the Veteran's military service. Accordingly, in-service acoustic trauma is conceded. The only remaining question is whether the Veteran's current hearing loss and tinnitus are related to his military service period. With respect to this question, there is one medical opinion of record, from the examiner who conducted the April 2010 VA audiology examination. The report reflects that the Veteran informed the VA examiner that his hearing loss and tinnitus problems began when he was in his early thirties (approximately seven (7) years after service). The Veteran acknowledged occupational noise exposure as a machinist for six (6) years but stated that he had no occupational noise exposure during his 38 years as a roofer and had no recreational noise exposure. Based on review of the claims file and medical records and an interview and evaluation of the Veteran, the VA examiner opined that although the Veteran had severe to profound hearing loss in his right ear and moderately severe to profound hearing loss in his left ear, his hearing loss and tinnitus were less likely than not caused by, or a result of, hazardous noise exposure during military service. The examiner noted that the Veteran's enlistment and separation examinations showed no "significant threshold shift" and that there was no evidence of hearing loss or tinnitus within one year of separation from service. The VA examiner explained that a study by the Institute of Medicine (2005) concluded that there is no scientific basis for hearing normal at discharge and delayed or late onset noise-included hearing loss being causally attributable to military noise exposure several years later. The Board finds this VA examination opinion to be highly probative, as the opinion was rendered with a thorough rationale after an interview and evaluation of the Veteran and review of the Veteran's claims file and medical records. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board acknowledges that with hearing loss claims, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). In other words, a veteran need not have had evidence of a hearing loss disability as defined by 38 C.F.R. § 3.385 in service, only currently; and service connection is possible if the current hearing loss disability can be adequately linked to service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In the instant case, however, the competent medical evidence demonstrates that the current hearing loss disability is not related to in-service acoustic trauma, and the examiner who provided the opinion supported it with citation to scientific evidence. The Veteran has made various contentions regarding his hearing loss and tinnitus symptoms. He has contended that his hearing loss and tinnitus began in 1969, approximately two years after service. He also stated that his "hearing was good" upon separation from service and that he did not notice a problem with his hearing until he was older. See January 2013 Hearing Transcript. Additionally, he alleged that his hearing loss began approximately "4 or 5 years" after service but worsened when he was in his thirties and that his tinnitus began "4 or 5 or 6 years" after service. See January 2013 Hearing Transcript, January 2010 Veteran's lay statement, and January 2010 Wife's lay statement. The Veteran is competent to report a history of hearing loss and tinnitus symptoms. See 38 C.F.R. § 3.159(a)(2) (2013); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno, 6 Vet. App. at 469-70 (1994). Although he Veteran has made various assertions regarding when the hearing loss and tinnitus symptoms began, he has been very consistent in noting that none of the symptoms began in service or within a year after discharge from service. Based on the Veteran's statements regarding the delayed onset of his hearing loss noted above, there is also no evidence of continuity of symptomatology of bilateral sensorineural hearing loss since separation from service. Walker, supra. Thus, service connection is not warranted under 38 C.F.R. § 3.303(b). Importantly, the Board notes that the Veteran's allegations of hearing loss and tinnitus symptoms starting several years after service were taken into consideration by the April 2010 VA examiner when formulating the negative etiology opinion. Moreover, although sensorineural hearing loss is considered chronic under 38 C.F.R. § 3.309(a), there is no evidence indicating that the Veteran's bilateral sensorineural hearing loss manifested within one year of separation from service and accordingly, service connection is not warranted on a presumptive basis. 38 C.F.R. § 3.307 (2013). For all the foregoing reasons, the Board finds that the claims for service connection for bilateral hearing loss and tinnitus must be denied. In reaching the conclusion to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs