Citation Nr: 1337773	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  12-26 918	)	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:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

Shari Gordon, Associate Counsel





INTRODUCTION

The Veteran had active military service from July 1972 to July 1974.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bilateral hearing loss and tinnitus.


FINDINGS OF FACT

1.  Left ear hearing loss did not have its clinical onset in service and is not otherwise related to active duty; sensorineural hearing loss was not exhibited within the first post service year.

2.  Pre-existing right ear hearing loss did not increase in severity during active duty.

3.  Tinnitus did not have its clinical onset in service and is not otherwise related to active duty.

CONCLUSIONS OF LAW

1.  Left ear hearing loss was not incurred or aggravated in service, and sensorineural hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2013).

2.  Right ear hearing loss was not incurred or aggravated in service.  38 U.S.C.A.     §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385 (2013).

3.  Tinnitus was not incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. 

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a July 2010 letter, sent prior to initial unfavorable RO decision issued in October 2010, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as VA's respective responsibilities in obtaining such evidence and information. 

Relevant to the duty to assist, the Veteran's service treatment records as well as post-service private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal.  In that respect, in June 2010, the Veteran submitted authorizations to release treatment records pertaining to his hearing loss and tinnitus and at the same time submitted the relevant treatment records for the individual physicians identified.  Thus, it appears to the Board that the claims file includes all relevant private treatment records, as the Veteran has not identified any missing treatment records even after review of the October 2010 rating decision that listed the evidence received.  The Board has also reviewed the Veteran's paperless Virtual VA claims file and has noted that there are no additional documents relevant to the pertinent appeal in the Virtual VA file.  Additionally, the Veteran was provided with a VA examination in September 2010 in connection with his service connection claim.  The Board finds that the September 2010 examination is adequate to decide the Veteran's claims because it includes necessary physical findings and opinions with clear conclusions.  Therefore, the Board finds that a remand to obtain an additional opinion is not necessary. 

Thus, 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) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); 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.

II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  Tinnitus is not such a disability.   

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A.    § 1111.

Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] 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 natural progress of the disease."  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  38 C.F.R. § 3.306(b).  Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

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 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service.  38 C.F.R. § 3.306(b)(1).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley  v. Brown, 5 Vet. App. 155, 157 (1993).  For the 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. 

The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159. 

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that he was exposed to acoustic trauma while in service.  Specifically, in a letter received by the VA in September 2011, the Veteran reported to a private audiologist that as a chaparral missile crewman, he fired anti-aircraft missiles with no hearing protection.  He further contends in a September 2010 VA examination that he has experienced hearing loss and tinnitus since service which he relates to in-service noise exposure, and thus argues that service connection for hearing loss and tinnitus is warranted.

The Veteran's service personnel records, specifically, his service separation form, his DD-214, confirm that he was a chaparral missile crewman The Board concedes that the Veteran experienced acoustic trauma in service as a result of his military duties.  He has offered competent testimony as to his in-service experience with noise exposure; there is no indication that the Veteran is not credible.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Service treatment records (STRs) reflect that on the November 1971 pre-induction examination, the following pure tone thresholds, in decibels, were reported:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
25
NR
50
LEFT
20
25
15
NR
25

The Veteran was also afforded a March 1974 separation examination, the report of which noted the following pure tone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
0
NR
50
LEFT
20
10
0
NR
25

The STRs are negative for any reports of left ear hearing loss or tinnitus.  The results of the induction examination show that because the Veteran demonstrated 50 decibels at 4000 Hertz in the right ear, his hearing acuity in the right ear comports with the VA standards for hearing loss as a disability.  See 38 C.F.R. § 3.385.

As right ear hearing loss was noted at entry into service, the presumption of sound condition did not attach with regard to this disability, which preexisted service.  In the case of such a preexisting disability, entitlement to service connection is warranted where current disability is due to aggravation of the disorder during service.  38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by service when "there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease."  In this case, service connection for right hearing loss must be denied because there was no permanent increase in disability during service.  Because there was no increase in severity during service, the presumption of aggravation does not attach.

The evidence shows that the preexisting right ear hearing loss did not permanently increase in severity during service.  Moderate hearing loss of 50 decibels at 4000 Hertz of the right ear was present on both the entrance and exit examinations.  Values from 500 to 2,000 Hertz did not increase in severity.  Here, the objective evidence establishes that right ear hearing loss did not permanently increase in severity during service.  Because the Veteran had the same level of right ear hearing loss at entrance and discharge, it may only be concluded that the preexisting right ear hearing loss did not increase in severity during service and was not aggravated during service.  The September 2010 VA examiner noted that there was no significant decrease in the Veteran's hearing sensitivity when comparing the entrance and exit examinations.  It was added that acoustic trauma in service would have had an immediate effect on hearing and this was not demonstrated in the service audiograms.   

Having determined that the Veteran's pre-existing right ear hearing loss was not aggravated by service, and that he was exposed to acoustic trauma during service, the remaining questions before the Board are whether the Veteran has a current diagnosis of left ear hearing loss and tinnitus for which service connection may be granted, and whether there is nexus between any left ear hearing loss or tinnitus and his service.  Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521(1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). 

August 2007 private treatment records show the Veteran complained of sudden left ear hearing loss.  The Veteran told the treating physician that he awakened two weeks prior with roaring in his left ear and could not hear.  He further stated that he hears high pitch sounds like breaking glass.  He also stated that he has a body shop and had noise exposure, but had never experienced such an issue with his hearing.  The Veteran also indicated that his brother had the same problem as a child and had surgery to treat it.  The Veteran was diagnosed with tinnitus and sensorineural hearing loss, consistent with idiopathic sudden loss superimposed on baseline high frequency noise induced hearing loss.

September 2007 private treatment records show that the Veteran was seen for complaints that his left ear felt very plugged.  As treatment, a pressure equalization tube (PET) was placed in his left ear due to Eustachian tube dysfunction.

In August 2010, the Veteran's wife submitted a lay statement describing that his hearing loss had worsened and that she often repeats herself to him.  She also mentioned that she notices that he has to listen very intently during conversations with others.  While the Veteran's wife is competent to report what she has observed as to the Veteran's hearing loss, her statements do not speak to the onset or etiology of the disability and as such, her statements are not probative evidence.  See Layno.

At the September 2010 VA examination, the Veteran reported that he was exposed to excessive military noise exposure in the form of missile firing and small arms fire.  He reported excessive occupational noise exposure when working in an auto body shop from 1974 - 1988.  He denied noise exposure when working for an insurance company from 1988 to the present.  He also indicated recreational noise exposure in the form of hunting and seasonal use of lawn mowing equipment.  The Veteran further reported that his brother has a perforated ear drum; however, he does not appear to have hearing loss.  The Veteran added that his tinnitus began about 20 years ago and had gradually increased in severity.  He could not relate the onset of tinnitus to a specific incident.  Audiometric testing resulted in a diagnosis of sensorineural bilateral hearing loss that met the requirements as a disability for VA purposes.  Specifically, in the left ear, he demonstrated 55 decibels at 2000 Hertz.  See C.F.R. § 3.385.

After reviewing the claims file, including the STRs, the examiner concluded that the Veteran's hearing loss was less likely as not related to his service.  In so determining, the examiner explained that the STRs showed no significant decrease in the Veteran's hearing sensitivity when comparing his entrance examination to his exit examination.  The examiner explained that any hearing loss measured in the future would not be caused by past exposure to high intensity noise in the military as studies have shown that hazardous noise exposure has an immediate effect on hearing.  Thus, once the Veteran separated from service, there would be no further progression of hearing loss as a result of any in-service noise exposure.  With regard to the Veteran's tinnitus, the examiner explained that because the Veteran was unable to provide an exact date or event for the onset of his tinnitus, stating that it likely began in 1990, which was 16 years after discharge, and because there was no documented change in hearing sensitivity noted, nor any mention of tinnitus in his STRs, it was less likely as not that his tinnitus was caused by or the result of in-service acoustic trauma.  

Here, the medical opinion by the VA examiner, in September 2010, is probative because it was rendered by a competent medical professional, it was based on a thorough review of the file and available treatment records, and the examiner offered a reasonable medical basis for his conclusion.  Absent probative evidence to the contrary, the Board is not in a position to further question the results of this examination.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991).  There is thus evidence, from the September 2010 VA examination, of a diagnosis of left ear hearing loss that comports with VA standards, and tinnitus.  Charles v. Principi, 16 Vet. App. 370, 374.   

In a letter received by VA in September 2011, a private audiologist conducted an evaluation of the Veteran that revealed a significant decrease in his hearing compared with his audiograms obtained during his military service.  The audiologist explained that acoustic trauma causes damage to outer hair cells in the cochlea resulting in permanent, progressive, sensorineural hearing loss and tinnitus.  The audiologist thus gave an opinion, considering the Veteran's STRs that it is at least as likely as not that the Veteran's hearing loss and tinnitus are related to his military noise exposure and may have worsened as a civilian.

The private audiologist, who submitted the September 2011 statement, did not review the claims file.  The review of a Veteran's claims file, as it pertains to obtaining an overview of a Veteran's medical history, is not a requirement for a private medical opinion, and such opinion may not be discounted solely because the private clinician did not review the claims file.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  In this case, however, it is significant that the private audiologist did not have the opportunity to review all of the pertinent medical evidence of record, specifically including the August 2007 records wherein the Veteran reported a sudden left-ear hearing loss and roaring sound.  The private audiologist also does not appear to have considered the Veteran's post-service occupational and recreational noise exposure.  As such, her opinion, rendered without consideration of all of the pertinent evidence of record, is of no probative value. 

In a letter received in August 2012, the Veteran's treating physician noted past military service and opined that the Veteran has hearing loss in a pattern consistent with noise exposure from the past and currently has difficulty hearing.

The private physician, in the August 2012 letter, failed to provide a rationale for his opinion and thus such opinion is inadequate.  See Nieves-Rodriguez, 22 Vet. App. at 304 (a medical opinion is not entitled to any weight if it contains only data and conclusions); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  Further, the private physician did not comment on the Veteran's post-service noise exposure and his own August 2007 treatment records detailing sudden onset left ear hearing loss.

The Veteran asserted in his April 2011 notice of disagreement (NOD) that he experienced noise exposure as a wrecker driver in an auto body shop, yet not enough noise exposure to cause his loss of hearing and ringing in his ears.  He further contended that his hearing loss and tinnitus did not begin 20 years ago, but rather worsened 20 years ago.  He also asserted that his hearing loss and ringing of the ears are a result of service and that both have existed since service.

In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's hearing loss and any instance of his military service to be complex in nature.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 

Therefore, while the Veteran is competent to describe his difficulty hearing and ringing in the ears, the Board accords his statements regarding the etiology of such disorders less probative value as he is not competent to opine on such complex medical questions.  Moreover, the Veteran has only offered conclusory statements regarding the relationship between his military service and his current left ear hearing loss and tinnitus.  By contrast, the September 2010 VA examiner took into consideration all the relevant facts in providing their opinion, including the Veteran's treatment history, lay statements, and medical literature and knowledge.

To the extent that the Veteran is competent to state that he experienced hearing loss and tinnitus for many years following service, the Board finds that statement to be less persuasive than the competent medical opinion of record.  Although the Veteran is competent to state what he experienced through his senses, such as the sensation of hearing loss, the record is silent for his described hearing loss in service and for many years following service.  Layno at 465-469.

Furthermore, he has not referred to any other treatment records to show that he did in fact suffer from hearing loss or tinnitus in the years following service.  To that extent, in his statements to the VA, the Veteran was unsure of the exact onset of his hearing loss.  Thus, there is a question as to whether his hearing loss began in service, shortly after service, or many years following separation from service.  Therefore, although the Veteran is competent to state he experienced hearing loss for many years, there is a question of continuity of symptomatology in this case.  In that regard, it is most significant that the Veteran, in written and oral statements made to VA in support of his claim, asserted that his hearing loss and tinnitus began since service; yet his statements made to the August 2007 private physician, complaining of sudden hearing loss and tinnitus, contradicted his prior claims regarding such etiology and onset.  The Board is unable to reconcile the Veteran's statements made to VA in support of his claim with those made during treatment or to VA compensation examiners.  See Caluza, 7 Vet. App. at 511 (a witness's credibility may be impeached by a showing of interest, bias, or inconsistent statements); see also Rucker, 10 Vet. App. at 73 (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care).  Thus, the competent and probative medical record outweighs the Veteran's statements because, given that discrepancy, the examiner found it unlikely that the Veteran's hearing loss and tinnitus were related to service, especially in light of a review of the separation examination and the lack of continuity of symptoms of hearing loss and tinnitus for many years following service.  The examiner's opinion is considered competent and probative, and is thus given higher weight than the Veteran's statements, for the reasons explained above. 

Also, the record fails to show that the Veteran manifested left ear hearing loss to a degree of 10 percent within the one year following his service discharge in 1974.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  As discussed above, the Board found that right ear hearing loss pre-existed service and was not aggravated there within.

Based on the foregoing, the preponderance of the evidence is against the Veteran's claims.  The benefit-of-the-doubt doctrine is therefore not for application in this case and the claims of service connection for bilateral hearing loss and tinnitus must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert, 1 Vet. App. at 55-57.

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs