Citation Nr: 1337528 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-11 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. L. Wolinsky, Associate Counsel INTRODUCTION The Veteran had active military service from September 1962 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran seeks service connection for bilateral hearing loss and tinnitus. The July 2010 rating decision also denied entitlement to non-service connected pension and the Veteran appealed that denial. However, in a submission sent to the RO, the Veteran withdrew the claim for pension. Therefore, the issue is not on appeal. The Board notes that the appellant requested a hearing before a decision review officer (DRO) in connection with the current claims. The DRO hearing was scheduled and subsequently held in April 2012 at the Lincoln, Nebraska RO. The appellant testified at that time and the hearing transcript is of record. In addition the Veteran withdrew his request for a Travel Board hearing in November 2012. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The probative evidence does not show that the Veteran's diagnosed hearing loss is causally or etiologically related to his military service, nor was sensorineural hearing loss manifested within one year after service. 2. The probative evidence does not show that the Veteran's tinnitus is causally or etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA has a duty to notify and assist veterans in substantiating a claim for VA benefits under the Veterans Claims Assistance Act (VCAA). 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). 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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). A letter sent to the Veteran in March 2010, addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in July 2010. The letter included notice regarding what information and evidence was needed for the Veteran to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2010 letter satisfied VA's duty to notify. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO associated the Veteran's service treatment records (STRs) with the claims file. In June 2010, VA provided the Veteran with an audiology examination and obtained a medical opinion addressing whether any current hearing loss or tinnitus had its onset during or was caused by active service. The audiology examination and opinion is adequate, as the examination report shows that the examiner, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination with testing and provided a reasoned analysis to support the medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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). The Veteran is eligible for service connection through a presumptive or direct basis. Service connection for sensorineural hearing loss will rebuttably be presumed if it is manifest to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); see also M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."). Alternatively, a nexus to service may be established where there is continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Service connection on a direct basis 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 Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report on symptoms of ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002). However, the Veteran is not competent to provide evidence as to more complex medical questions such as his degree of hearing loss based on decibels and Hertz frequencies. See e.g. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) holding that unlike varicose veins in Barr v. Nicholson, 21 Vet. App. 303, 308 (2007), rheumatic fever is not a condition capable of lay diagnosis. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Prior to November 1, 1967, audiometric testing for hearing by a service department were reported by a standard set by the American Standards Association (ASA). Since November 1, 1967, the standard for audiometric testing for hearing has been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The ISO standard is the current method for measuring hearing loss and used by VA to determine a hearing loss disability under 38 C.F.R. § 3.385. In order to facilitate data comparison, when necessary the ASA standard has been converted to the ISO standard for audiograms in service before November 1967. Tinnitus is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). See Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. See YT v. Brown, 9 Vet. App. 195, 196 (1996); See also Kelly v. Brown, 7 Vet. App. 471, 472 (1995). III. Hearing Loss Analysis 1. Current Disability The Veteran has a hearing loss disability for VA purposes in both his left and right ears. The Veteran underwent an audiology examination in June 2010. The Veteran's left ear auditory thresholds were, 15, 5, 15, 50, 65 decibels at 500, 1000, 2000, 3000, or 4000 Hertz, respectively. The June 2010 exam revealed normal speech recognition scores using the Maryland CNC Test, finding left ear hearing at 96%. The Veteran's right ear auditory thresholds were, 15, 10, 15, 50, 65 decibels at 500, 1000, 2000, 3000, or 4000 Hertz, respectively. The June 2010 exam revealed normal speech recognition scores using the Maryland CNC Test, finding left ear hearing at 98%. The threshold level at 3000 and 4000 Hertz in both the Veteran's left and right ear qualify as a hearing loss disability under 38 C.F.R. § 3.385. The Veteran fulfills the current disability element for service connection. 2. In-Service Injury The evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. This injury is consistent with the Veteran's Military Occupational Specialty (MOS) as an ordananceman, found on the Veteran's Form DD 214. Furthermore, the Veteran provided testimony that he was routinely near jet engines on the flight line as part of the flight crew. In service the Veteran underwent audiogram testing which showed that in September 1962 the Veteran had converted right ear testing of 35, 25, 25, 20 decibels at 500, 1000, 2000 or 4000 Hertz, respectively, and left ear testing of 35, 20, 10, 5 decibels at 500, 1000, 2000 or 4000 Hertz, respectively. In November 1962 the Veteran had converted hearing in his right ear of 30, 30, 25, 25 decibels at 250, 500, 1000, or 2000 Hertz, respectively and converted hearing in his left ear of 30, 30, 20, 30 decibels at 250, 500, 1000, or 2000 Hertz, respectively. In September 1964 the Veteran's converted audiogram results for his right ear was 15, 5, 5, 15, 10, 20 decibels at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively and for his left ear 5, 0, 0, 5, 0, 0 at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively. In August 1965 the Veteran's converted audiogram results for his right ear were 15, 5, 5, 15, 10, 20 decibels at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively, and 5, 0, 0, 5, 0, 0 at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively. In August 1967, the Veteran's converted audiogram results for his right ear were 5, 0, 0, 0, -5 decibels at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively, and 5, 0, 5, 0, -5 at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively in his left ear. In March 1968 the Veteran's audiogram results for his right ear were -5, 0, -5, 5, 15, 5 decibels at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively, and for his left ear 0, 0, 0, 5, 5, 5 at 500, 1000, 2000, 3000, 4000, 6000 Hertz respectively. The Veteran fulfills the in-service injury element for bilateral hearing loss. 3. Nexus The Board observes that there is no competent medical evidence showing that the Veteran was diagnosed as having sensorineural hearing loss within one year of his service discharge. Therefore, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309. The determinative question in the instant case is whether the Veteran's current hearing loss is related to service, including the acoustic trauma. This is a complex medical question requiring specialized medical training in order to address. The claims file contains only one medical opinion concerning the etiology of the Veteran's hearing loss. In June 2010, a VA audiologist examined the Veteran and opined that the Veteran's bilateral hearing loss is not at least as likely as not a result of occupational noise exposure while the Veteran was on active military duty. The opinion was based on his review of the medical/service records, including the claims file. The audiologist provided a rationale for the opinion stating: Exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift. This disappears in 16 to 48 hours after exposure to loud noise. Impulse sounds may also damage the structure of the inner ear resulting in an immediate hearing loss. Continuous exposure to loud noises can also damage the structure of the hair cells resulting in hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent hearing loss exists. Since the damage is done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss. This opinion from the VA audiologist coincides with the STRs of the Veteran, wherein the Veteran showed normal hearing when tested upon exit from service. While the Veteran's audiogram results show abnormal hearing in September and November of 1962, the Veteran's September 1964, August 1965, August 1967, and March 1968 hearing was found to be normal. In giving her opinion, the audiologist took into consideration the Veteran's history of military, occupational and/or recreational noise exposure. The Veteran reported military noise exposure, with only recreational boating as his noise exposure since service. The examiner also performed an otoscopic exam, and discussed with the Veteran the impact of the Veteran's hearing disability on the Veteran's occupational and social life. The Board finds that the June 2010 opinion by the VA audiologist is probative in determining the etiology of the Veteran's bilateral hearing loss. It is clear that the audiologist's rationale for the opinion was based on all of the applicable facts, a complete history, including noise history, and medical findings, including no significant puretone threshold shifts between the Veteran's service entrance examination and discharge examination. The examiner reviewed previous audiology exams, and came to her rationale based on a detailed examination of the Veteran. The Board notes that the Veteran asserts that his hearing loss is related to the noise exposure he had in service. While the Veteran is competent to report on experiencing hearing problems and he is credible in his belief that his hearing problems are related to service, his lay statements are outweighed by the competent medical opinion evidence of record. The Veteran is not competent to give opinions as to the etiology of his hearing loss or to discuss the significance of any threshold shifts because this involves a complex medical matter. In this regard, the Veteran has not demonstrated that he has specialized training or knowledge when it comes to diagnosis or etiology of audiological conditions. Here, the medical opinion evidence does not show a causal relationship between the Veteran's hearing loss and his in-service noise exposure. In sum, the competent and probative medical evidence fails to show that the Veteran's sensorineural hearing loss developed within one year of service discharge or that there is competent and probative evidence showing that hearing loss is related to service. As such, service connection for hearing loss is not warranted on any basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). Therefore, the Veteran's claim for service connection for hearing loss is denied. IV. Tinnitus Analysis 1. Current Disability The Veteran has a disability, in the form of bi-lateral tinnitus. At the Veteran's DRO hearing he stated that he believed his tinnitus had its onset in service. The Veteran further stated that he thought the ringing in his ears was just normal, until his condition was explained to him. The Veteran testified again that he had tinnitus since service. At the Veteran's audiology exam he stated that he had tinnitus for a long time, but could not be more specific; he also stated that the tinnitus is constant. The Veteran in a Statement in Support of Claim made in August 2009 stated that he had "ringing and hissing in my ears forever. I notice this most in evenings when things are quiet." The Veteran is competent to report on experiencing ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002). The June 2010 VA examination report shows that the examiner essentially found the Veteran's report that he currently experienced ringing in the ears credible. Therefore, the Veteran fulfills the current disability element for service connection. 2. In-Service Injury The evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. This injury is consistent with the Veteran's Military Occupational Specialty (MOS) as an ordananceman, found on the Veteran's Form DD 214. Furthermore, the Veteran provided testimony that he was routinely near jet engines on the flight line as part of the flight crew. The Veteran fulfills the in-service injury element for tinnitus. 3. Nexus In the instant appeal, there is favorable and unfavorable evidence on the issue of nexus. The favorable evidence, however, consists of the Veteran's lay statements which appear to be speculative. At the June 2010 VA examination, the Veteran reported that he had ringing in his ears "for a long time" but could not be more specific while at the 2012 DRO hearing, he reported that he had had tinnitus since service. As for the unfavorable evidence, a VA audiologist submitted a negative nexus opinion stating that it is not at least as likely as not that the Veteran's tinnitus is a result of noise exposure during his military service. The VA audiologist reasoned that: There is a high correlation between hearing loss, tinnitus and noise exposure. The presence of a ratable hearing loss from the service or audiometric configuration consistent with noise exposure is a strong indicator that any reported tinnitus was also from noise exposure. Conversely normal hearing from the service suggests any reported tinnitus is less likely to be from noise exposure in service. Since the Veteran's hearing was normal at separation from the service it is less likely as not the reported tinnitus was from military noise exposure. The Veteran's reported tinnitus is more likely than not due to the existing loss and/or noise exposure subsequent to service. The examiner also diagnosed the Veteran's tinnitus as a symptom of the Veteran's hearing loss. After weighing the evidence, a credible nexus between the Veteran's tinnitus and his military service does not exist. The Board has considered the Veteran's statements in support of his service connection claim; however, they contain some internal inconsistencies and so appear to be speculative as discussed above so they are of less probative weight. Crucially, similar to hearing loss, determining the precise etiology of the Veteran's tinnitus involves a complex medical question, as there can be multiple potential etiologies of the disorder of tinnitus. Here, the competent and credible medical opinion evidence has indicated that the Veteran's tinnitus is not at least as likely as not caused by service. This opinion is supported by a rationale based on sound medical principles and is not countered by any other medical opinion. As the negative VA opinion on the question of nexus carries the most probative weight, the preponderance of the evidence weighs against a finding that the Veteran's tinnitus is related to the acoustic trauma sustained in service. As such, service connection for tinnitus is not warranted on any basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). Therefore, the Veteran's claim for bilateral tinnitus is denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs