Citation Nr: 1337694 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-21 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Martinez, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT 1. Hearing loss and tinnitus were not present until many years after service. 2. The preponderance of the evidence weighs against a finding that the Veteran's current hearing loss and tinnitus are related to acoustic trauma sustained in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. In December 2007, the Veteran was notified via letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and it complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Board also finds that the duty to assist requirement has been fulfilled. All relevant, identified, and available evidence has been obtained; specifically, the Veteran's service treatment records and VA examination report are in the file. The Veteran has not referred to any additional existing evidence that is necessary for a fair adjudication of the claim which has not been obtained. The record reflects that the Veteran underwent a VA examination to evaluate his claimed bilateral hearing loss and tinnitus in March 2008. The report from that examination and the medical opinion have been included in the claims file for review. This examination and opinion involved a review of the claims file, a thorough examination of the Veteran, and an opinion supported by rationale. The Board finds that this examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board concludes that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). II. Service Connection The Veteran attributes his current hearing loss and tinnitus to acoustic trauma experienced during service as a mechanic. He recounts repeatedly doing 12 hour shifts in service where he was exposed to noise from very large diesel generators without the benefit of any hearing protection. He also reports exposure to noise from loud heaters and helicopters. He asserts that the acoustic trauma in service caused hearing loss and tinnitus to develop over time, and claims service connection is warranted. Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Service connection may also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1132; 1133 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). Although the Veteran has a current diagnosis of hearing loss and tinnitus, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's current hearing loss disability is related to the acoustic trauma sustained in service. As the Veteran asserts that his hearing loss is the result of exposure to loud noises in service, a relationship or "nexus" to service may in this case be established on either a presumptive or direct basis. See 38 C.F.R. §§ 3.303, 3.309. Nonetheless, neither basis is availing in this case. The Veteran is not entitled to service connection for bilateral hearing loss and tinnitus on a presumptive basis because there is no evidence that his hearing loss and tinnitus manifested in service or within one year of separation from service. 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 (West 2002); 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 will be presumed 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 treatment records do not document any reports of hearing difficulties or problems with the Veteran's ears. A September 1970 report of medical examination for the purpose of separation from active duty documents that audiometric test result thresholds at 500, 1000, 2000, 3000, and 4000 Hz were each no greater than 10 dB. In an associated report of medical history, the Veteran endorsed that he had never had hearing loss or trouble with his ears. This evidence tends to show that the Veteran's bilateral hearing loss and tinnitus did not have their onset during his active service. The Veteran filed a claim for VA disability compensation in September 1970, but he did not reference hearing loss or tinnitus. The report of a VA disability compensation examination conducted in October 1970 indicates that no hearing loss was noted. The Veteran first filed a claim for service connection for hearing loss and tinnitus in November 2007, over 37 years after separation. Notably, on a VA examination conducted in March 2008, the Veteran reported that he had difficulty hearing for at least 30 years. The Board notes that this history does not necessarily place the date of onset as having been during or immediately after service. As the Veteran's bilateral hearing loss and tinnitus did not manifest within the year after his separation from service, and he does not assert that he had continuous difficulty hearing since service separation, he is not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. The Board finds that the Veteran is also not entitled to service connection for bilateral hearing loss and tinnitus on a direct basis. 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 Hensley v. Brown, 5 Vet. App. 155 (1993), the Court of Appeals for Veterans Claims 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." Id. at 160. To make this determination, 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). In this case, there is conflicting evidence on the issue of nexus, which must be weighed. The claim is supported by the Veteran's lay statements that he believes his hearing loss was caused by service. This evidence is contradicted by a March 2008 VA audiological examination report in which the VA examiner opined that there was no nexus between the Veteran's bilateral hearing loss and tinnitus and the Veteran's service. The VA examiner's rationale is that the Veteran displayed normal hearing at separation from service and there is no scientific basis for delayed onset of hearing loss, based on her clinical experience and expertise, a review of the Veteran's file, and a medical study. Under Hensley (supra) and Ledford v. Derwinski, 3 Vet. App. 87 (1992), the Court held that VA may not deny service connection for hearing loss simply because a hearing loss disability (as defined by 38 C.F.R. § 3.385) was not present on audiometric testing at separation from service. The Board finds, however, that the VA examiner's opinion is adequate and does not contravene Hensley and Ledford because the VA examiner did not base her opinion on a belief that service connection is unavailable when a veteran leaves service with normal hearing as defined by 38 C.F.R. § 3.385. Instead, the VA examiner opined that there was no medical relationship between the current hearing loss and noise exposure in service given the normal hearing on separation plus a study showing that there is no scientific basis for delayed onset of hearing loss. The Board finds that this is an adequate opinion based on medical analysis of the evidence rather than a legal determination. Regarding the Veteran's lay statements that he believes there is a nexus between his hearing loss and tinnitus and his service, the Veteran has not demonstrated that he is an expert when it comes to diagnosis or etiology of audiologic conditions; he is therefore a layperson in this regard. Nonetheless, the Board finds that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss and tinnitus. Therefore, the Veteran's lay opinion could be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, in this case, the evidence demonstrates that there was a substantial gap in time between the Veteran's exposure to loud noises in service and the initial manifestation of his sensorineural hearing loss and tinnitus. In such a circumstance, other potential causes of his sensorineural hearing loss and tinnitus must be considered. Significantly, determining the precise etiology of the Veteran's hearing loss and tinnitus is not a simple question because there are multiple potential etiologies of the Veteran's sensorineural hearing loss, as cited by the March 2008 VA examiner. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss and tinnitus is not sufficient to outweigh the opinion of the expert who carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). Thus, the Board finds that the Veteran's lay opinion is not entitled to significant weight as compared to the March 2008 VA 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 current hearing loss and tinnitus are related to the acoustic trauma sustained in service. Consequently, service connection for bilateral 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 here because the preponderance of the evidence is against the claim. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs