Citation Nr: 1337288 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-10 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to August 1967. This appeal to the Board of Veterans' Appeals (Board) arises from a March 2011 rating decision of the Newark, New Jersey Regional Office (RO) of the Department of Veterans' Affairs (VA). FINDINGS OF FACT 1. Hearing loss was not shown in service or for many years thereafter and is not shown to be related to service. 2. Tinnitus was not shown in service or for many years thereafter and is not shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). A November 2010 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's respective duties for obtaining evidence. The letter also explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, private treatment records, the report of a VA audiological evaluation (with a medical opinion), and the assertions of the Veteran and his relatives. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. C.F.R. § 3.303(b); Walker, 708 F.3d at 1338 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1339. Because the Veteran has been diagnosed with sensorineural hearing loss, as reflected in the February 2011 VA examination report, and organic diseases of the nervous system, including sensorineural hearing loss, are defined as chronic diseases in section 3.309(a), the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service under subsection 3.303(b). See Walker, 708 F.3d at 1338-1339. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss as a chronic disease may 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.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). This presumption may only be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The evidence shows that the Veteran had left ear hearing loss severe enough to be considered disabling prior to entering his period of active service, and that it was not aggravated by any disease, injury, or event during active service. In this regard, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 C.F.R. § U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran's August 1965 enlistment examination includes an audiogram showing puretone thresholds in the left ear of 50 decibels at 500 Hertz, 40 decibels at 1000 Hertz, 60 decibels at 2000 Hertz, and 45 decibels at 4000 Hertz (converted from ANSI to ISO). Impaired hearing is considered a disability under VA law, in relevant part, when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater. 38 C.F.R. § 3.385. The Veteran reported at that time that he had been struck in the left ear with a baseball bat and had diminished hearing in the left ear. Thus, the August 1965 enlistment examination shows that the Veteran had disabling left ear hearing loss on entry into active duty. See id. Moreover, the Veteran's physical profile, or "PULHES" profile, in this report also reflects a numerical designation of "2" under "H," which means that the Veteran was found to have a hearing defect requiring some activity limitations. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (citing to then Army Regulation 40-501, Para. 9-3(b)(1)-(6), Change 35 (Feb. 9, 1987), now Para. 7-3(d)(2) (August 4, 2011)). Although the Veteran's hearing acuity was marked as normal in the "Clinical Evaluation" section on the front page of the examination report, the actual clinical findings on the second page make it clear that the Veteran's left ear hearing was noted as impaired. Because the Veteran's left ear hearing loss was noted at entry, he is not considered sound at entry with regard to his left ear hearing acuity, and service connection may only be granted for hearing loss based on aggravation due to an in-service disease, injury, or event, or a permanent increase during service. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b). A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; § 3.306(a); Townsend v. Derwinski, 1 Vet. App. 408 (1991). Thus, there is a presumption of aggravation when disability from a pre-existing injury or disease increases during service. See id. When the presumption of aggravation applies, it may only be rebutted by clear and unmistakable (obvious or manifest) evidence, such as medical evidence showing that any increase in disability was due to the natural progress of the preexisting condition. 38 C.F.R. § 3.306(b). A flare-up of symptoms, in the absence of an increase in the underlying disability, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation). Further, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The preponderance of the evidence shows that the Veteran's left ear hearing loss did not increase during active service. He did not seek treatment for any hearing problems during service. Audiometric testing performed on separation examination in March 1968 showed puretone thresholds in the left ear of 0 decibels at 500 Hertz, 0 decibels at 1000 Hertz, 0 decibels at 2000 Hertz, and 0 decibels at 4000 Hertz. He was assigned a physical profile of 1 for his hearing. Thus, the March 1968 separation audiogram shows that the Veteran's puretone thresholds improved at all relevant frequencies. Thus, no additional hearing loss was shown by the time of separation, but rather hearing improved at all frequencies. Accordingly, because there was no permanent increase of left ear hearing loss during service, but rather ultimately improvement of hearing, the presumption of aggravation does not apply. See 38 U.S.C.A. § 1153; § 3.306(a). The preponderance of the evidence weighs against a finding that the Veteran's pre-existing left ear hearing loss was aggravated by in-service noise exposure during active service. The Veteran was exposed to noise during service, including grinding, chipping, banging, pounding, and welding. However, he did not seek treatment for or complain of left ear hearing loss during service and he has not complained of or alleged any worsening of left ear hearing loss during service. On separation examination in March 1968 and on National Guard examination in March 1989, he stated that he had not had any prior hearing problems. Further, in January 2012, he indicated that his hearing loss had its onset about 15 years ago (e.g., in approximately 1997). The Veteran has not submitted any competent evidence showing that his pre-existing left ear hearing loss was aggravated by in-service noise exposure. Accordingly, the preponderance of the evidence shows that the Veteran's pre-existing left ear hearing loss was not aggravated by his period of active service. Even assuming, without deciding, that left ear hearing loss did not exist prior to service, service connection is not warranted based upon in-service incurrence, as discussed below. The Veteran has been found to have a current bilateral hearing loss disability by VA standards as shown by January 2010 VA audiological consultation findings, February 2011 VA audiological compensation and pension examination findings and August 2010 private audiological findings. He has also been diagnosed with current bilateral tinnitus. Additionally, as his primary military occupational specialty was fuel and electrical systems repairer and as he has also reported significant exposure to weapons noise, it is reasonably shown that he experienced noise exposure in service. The service treatment records do not show that the Veteran complained of hearing loss or tinnitus (with the exception of the left ear upon entry) during service, however. Notably, the Veteran's pre-induction audiological testing in August 1965 did not show right ear hearing loss in accordance with VA standards. There are no findings or complaints of hearing loss during service; the Veteran's bilateral hearing was within normal limits when tested at his March 1968 separation examination; and the Veteran reported on his March 1968 report of medical history at separation that he had not had any prior or current problems with hearing loss. Similarly, the Veteran's hearing was also within normal limits when tested during a March 1989 National Guard examination, and on his March 1989 report of medical history, he reported that he had not had any prior or current problems with hearing loss. Also, more recently, the Veteran has affirmatively reported that his hearing loss did not begin until approximately the late 1990s. In January 2011, his wife and daughter submitted statements indicating that they had noticed a progressive decline in his hearing over the past 10 years (e.g., since 2001). Thus, there is simply no indication that the Veteran experienced hearing loss in service and no indication that there was any hearing loss present during the first post-service year so as to warrant presumptive service connection. 38 C.F.R. §§ 3.303, 3.307. 3.309. Additionally, after reviewing the claims file and examining the Veteran, the February 2011 VA audiologist specifically concluded that the Veteran's hearing loss and tinnitus were less likely than not caused by or a result of military noise exposure. The examiner explained that there is no scientific basis for delayed onset or late onset noise induced hearing loss (i.e. normal at discharge from service and causally attributable to military noise exposure 20 to 30 years later). As this explanation was made by the audiologist applying his own expert knowledge concerning the etiology of hearing loss to the timing of the Veteran's specific hearing loss, it provides sufficient support for the examiner's conclusion. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012). The examiner also specifically found that the Veteran's tinnitus was more likely a symptom of his hearing loss. This conclusion similarly supports the finding that the "delayed onset" tinnitus less likely than not resulted from noise exposure in service. Because symptoms are generally understood to be caused by the underlying disease or disability process and because the Veteran's underlying disease or disability process (i.e. hearing loss) less likely than not resulted from service, a symptom of this disease or disability process (i.e. tinnitus), also less likely than not resulted from service. Accordingly, the specific finding that tinnitus is likely a symptom of the hearing loss, coupled with the examiner's reasoning concerning the onset and etiology of the hearing loss, provides a sufficient rationale for the examiner's conclusion concerning the onset and etiology of the tinnitus. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012). Moreover, there are no medical opinions of record to the contrary (i.e. opinions tending to indicate that the current hearing loss or tinnitus is related to noise exposure in service). The Veteran, his wife, and his daughter have asserted that the hearing loss and tinnitus are the result of noise exposure from weapons in service. However, as laypeople, with no demonstrated expertise concerning the etiology of these disabilities, their assertions may be afforded only minimal probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the weight of the evidence is against the presence of a nexus between noise exposure in service and current hearing loss and tinnitus. Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Accordingly, given that hearing loss and tinnitus were not shown in service or for many years thereafter and are not shown to be related to service, the preponderance of the evidence is against the claims and they must be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs