Citation Nr: 1337769 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-16 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from August 1967 to June 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not causally related to service, nor did he have hearing loss to a compensable degree within one year of service, nor did he experience an increased hearing loss continually since service. 2. The Veteran's tinnitus is not causally related to service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for bilateral hearing loss are not met as the disorder was not incurred in or aggravated by active duty; nor may sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in February 2010, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the February 2010 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide 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. A VA audiological evaluation with nexus opinion was obtained in June 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2010 VA examination report obtained in this case is adequate, as it is based on a reading of relevant medical records in the Veteran's claims file. The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinion on file. There is adequate medical evidence of record to make a determination on the service connection issues in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the service connection issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claims The Veteran seeks service connection for bilateral hearing loss and for tinnitus as a result of service exposure to acoustic trauma. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In the case of sensorineural hearing loss, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). 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. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the normal progress of the disease. 38 C.F.R. § 3.306 (2013). 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. The Board notes that, for a preexisting condition, either the presumption of soundness or the presumption of aggravation applies, but not both, and the determinative factor is whether the condition was noted on the entrance examination. See Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2011). As is noted above, the Board is required to follow applicable statutes and regulations in its decisions. Applicable regulations provide that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 (2013). Before proceeding, the Board observes that prior to November 1, 1967, audiometric tests 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-ANSI 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, test results before November 1967 under the ASA standard should be converted to the ISO-ANSI standard. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records do not contain any complaints of hearing loss or tinnitus. An audiological evaluation in June 1967, which is prior to service, provides pure tone threshold results at the relevant frequencies, meaning from 500 to 4000 hertz, which are presumed to be ASA units since it is not specified and the examination is before November 1967. Converted to ISO units, the results in June 1967 would show pure tone thresholds at the relevant frequencies in the right ear of 30 decibels at 500 hertz, 15 decibels at 1000 hertz, 25 decibels at 2000 hertz, and 30 decibels at 4000 hertz. Pure tone thresholds at the relevant frequencies in the left ear were 30 decibels at 500 hertz, 20 decibels at 1000 hertz, 35 decibels at 2000 hertz, and 35 decibels at 4000 hertz. Defective hearing was noted. The Veteran complained in December 1969 of a sore throat and right ear pain, with redness and pus. Physical examination of the ear showed blood with a pale tympanic membrane, with questionable pus. Strep Pharyngitis was diagnosed. The service treatment records reveal that the Veteran's hearing on separation examination in May 1971 was 15/15 for spoken voice. According to an August 2009 report from Hearing Express Laboratory, the Veteran was fitted for bilateral hearing aids. Also on file is a February 2010 statement from Hearing Express Laboratory, in which it is noted that a recent test showed bilateral sensorineural hearing loss and that the Veteran had a long-term problem with tinnitus. This report is accompanied by an uninterpreted audiogram. A VA audiological evaluation, which included review of the service medical records, was conducted in June 2010. The Veteran complained of bilateral hearing loss and of tinnitus that began in 1973, with military noise exposure significant for aircraft and helicopters without ear protection. The Veteran also noted a right ear infection in service. Recreational noise exposure involved hunting 2-3 times a year, with the use of ear protection. Audiometric examination revealed pure tone thresholds from 500 to 4000 hertz in the right ear of 70 decibels at 500 hertz, 75 decibels at 1000 hertz, 75 decibels at 2000 hertz, 75 decibels at 3000 hertz, and 95 decibels at 4000 hertz. Pure tone thresholds from 500 to 4000 hertz in the left ear were 75 decibels at 500 hertz, 75 decibels at 1000 hertz, 70 decibels at 2000 hertz, 75 decibels at 3000 hertz, and 90 decibels at 4000 hertz. Speech recognition scores were 68 percent in the right ear and 76 percent in the left ear. The examiner diagnosed a bilateral moderately severe to severe sensorineural hearing loss. The Veteran's tinnitus was considered as likely as not associated with his hearing loss. The audiologist concluded in June 2010 that it was less likely as not that the Veteran's current hearing loss and tinnitus were caused by or the result of acoustic trauma during service because the audiological findings were not consistent with acoustic trauma. According to the audiologist, the degree of loss was much worse than predicted from his reported military noise exposure; the audiometric configuration did not have predictable characteristics seen with noise-induced hearing loss; there was no "noise notch" in the higher frequencies; and there was significant low frequency hearing loss not typical of noise-induced hearing loss. With respect to tinnitus, the examiner noted that the Veteran indicated that his tinnitus started in 1973, which is after service discharge, and that tinnitus secondary to acoustic trauma does not typically have a delayed onset. The Veteran also underwent a VA ear examination in June 2010 by a physician. The Veteran noted a right ear infection beginning in service, with no infection in the last 30 years. It was noted that the Veteran had been employed as an Environmental Health Administrator for more than 20 years. The diagnosis was status post otitis while in service. After review of the Veteran's service treatment records and the June 2010 audiological evaluation, the examiner concluded that the Veteran's hearing loss and tinnitus were less likely as not permanently aggravated by his service ear infection and that a unilateral ear infection/otitis on one occasion in service would not have caused his current bilateral sensorineural hearing loss. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The evidence on file does not support a grant of service connection for either bilateral hearing loss or for tinnitus. Although defective hearing was noted on preservice audiological evaluation in June 1967, with preservice audiological results showing defective hearing in the left ear under the VA definition noted above, there are no subsequent complaints or clinical findings of hearing loss in service. The initial post-service medical evidence of hearing loss was not until August 2009, which is over 38 years after service discharge, when the Veteran was fitted for hearing aids. Additionally, the only nexus opinions on file, which are based on both a review of the service treatment records and examination of the Veteran, are against the claims. The VA audiologist concluded in June 2010 that the audiological findings were not compatible with hearing loss due to acoustic trauma and the physician examiner concluded in June 2010 that a single ear infection in one ear in service would not cause or aggravate bilateral hearing loss or tinnitus. The audiologist also noted that the Veteran reported that his tinnitus did not begin until 1973, which is more than a year and a half after service discharge. Although it is unclear whether the VA examiners reviewed the 2009 and 2010 private treatment reports on file, this would not affect the VA nexus opinions because the private audiogram results are similar to the VA findings and the private reports do not include a nexus opinion. Because hearing loss after service was not shown until many years after discharge, there is no competent evidence that it manifested to a compensable degree within a year of service. There is also a lack of evidence that any possible preexisting hearing loss was aggravated by service. There is no competent and credible evidence that the Veteran's hearing loss worsened in service. See 38 C.F.R. § 3.306 (2013). In fact, the VA examiner in June 2010 determined that the Veteran's pattern of hearing loss was not consistent with noise induced hearing loss. While the Veteran is competent to state he has trouble hearing, he is not competent to opine on his specific level of hearing loss. Audiometric testing is required for that determination. Therefore, service connection for bilateral hearing loss cannot be presumed in this case. 38 C.F.R. §§ 3.307, 3.309. Due consideration has been given to the Veteran's statements in support of his claims. Although the Veteran is competent to report his hearing and tinnitus symptoms, he is not competent to opine that he currently has hearing loss and/or tinnitus due to service. The Board does not dispute that the Veteran was exposed to acoustic trauma in service; however, the evidence as a whole, as discussed above, does not show bilateral hearing loss and/or tinnitus due to service. Consequently, service connection for bilateral hearing loss and tinnitus are denied. Although the Veteran has stated he has had hearing loss continually since service, the record does not support a finding that his pre-existing hearing loss worsened in service. The long gap of time before treatment, and the June 2010 VA opinion finding that the Veteran's pattern of hearing loss was not consistent with noise induced hearing loss weigh against a finding of continuity of symptomatology. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's service connection claims, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs