Citation Nr: 1338356 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-01 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and Observer ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active military service from October 1968 to July 1970. The Veteran's decorations for his active service include a Combat Infantryman's Badge (CIB) and a Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the VA RO in Chicago, Illinois. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2011. In January 2012, the Board denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's decision with respect to these issues to the Court. In February 2013, the Court issued a Memorandum Decision vacating the January 2012 decision as it pertained to these issues and remanding the matters for further proceedings consistent with the Memorandum Decision. In June 2013, the appeal was remanded by the Board to the RO via the Appeals Management Center (AMC), in Washington, DC. The action directed by the Board has been accomplished and the claims have been returned to the Board for appellate review. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Bilateral hearing loss disability was not shown in service, was not manifested to a compensable degree within one year of separation from active service, and is not otherwise related to exposure to acoustic trauma during active service. 2. Tinnitus was not manifest during the Veteran's active service and is not related to such service CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active service, and an organic disease of the nervous system may not be presumed to have been so incurred. 38 U.S.C.A. § 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claims, the Veteran was mailed a letter in March 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In a separate March 2006 letter, the Veteran was provided with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examination. The most recent examination, dated in August 2013, was conducted by an examiner who reviewed the claims folder and examined the Veteran. The report is thorough and addresses all matters relevant to the adjudication of these claims. As such it is adequate for rating purposes. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. In May and October 2013, the Veteran reported that he had no additional evidence or argument to submit in relation to his claims. Accordingly, the Board will address the merits of the claims. Legal Criteria 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; 38 C.F.R. § 3.303. Service connection may 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). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests an organic disease of the nervous system 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. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-7; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran asserts that he has bilateral hearing loss disability and tinnitus as a result of noise exposure sustained while serving in combat during active service. The record establishes hearing loss disability as defined by VA at 38 C.F.R. § 3.385, as well as tinnitus, during the pendency of the claim. A review of the Veteran's DD Form 214 shows that he served in the Republic of Vietnam for nearly one year while he was in active service. As he was awarded both a CIB and a Purple Heart Medal during his active service, the Board concedes that the Veteran was exposed to noise during active service. Although the evidence of record reflects a shift in the Veteran's hearing acuity from his October 1968 Report of Medical Examination to his July 1970 Report of Medical Examination, a review of the service treatment records is negative for complaints of or treatment for hearing loss or tinnitus of either ear. Specifically, in October 1968, an audiogram showed puretone thresholds, in decibels, at the frequencies of 500, 1000, 2000 and 4000 Hertz of -5, -5, -5, 10 in the right ear and 10, 10 -10, 0 in the left ear. In July 1970, puretone thresholds, in decibels, at the frequencies of 500, 1000, 2000 and 4000 Hertz were all 0. At that time, the Veteran checked "no" on the health questionnaire to the question of whether he had experienced hearing loss during active service. There is no other indication from the examination report that the Veteran reported experiencing hearing loss or tinnitus while in active service. Additionally, the Veteran's ears and ear drums were noted to be clinically normal at the time of his separation from active service. A review of the post-service medical evidence shows that in January 2005, the Veteran was seen by a private physician for complaints of hearing loss. At that time, the Veteran reported that he had experienced hearing loss for years and it was noted that the Veteran had a history of noise exposure. However, the type of noise exposure reported by the Veteran was not recorded in the January 2005 treatment note. Based on the examination of the Veteran and the audiogram results, the examiner diagnosed bilateral sensorineural hearing loss disability. There is no indication from the treatment note that the Veteran's private physician attributed the diagnosed hearing loss to noise exposure during active service. There is no mention in the treatment note that the Veteran reported symptoms consistent with tinnitus at that time. The Veteran was also seen for treatment of his bilateral hearing loss disability at the VA Medical Center in 2006. A review of those records shows that the Veteran was issued hearing aids for treatment; however, there is no indication from the records that any of the Veteran's treatment providers reported that the Veteran's bilateral hearing loss disability is related to noise exposure during active service. The Veteran was afforded a VA audiology evaluation in July 2006. At that time, the Veteran reported that he had experienced hearing loss for some time, but that it had become especially noticeable during the last 7-8 years. The Veteran reported noise exposure during active service, in that he had served in combat. The Veteran denied occupational noise exposure subsequent to service, reporting that his primary occupation had been repairing and calibrating scales. He reported that he maintained both cows and pigs and that he did not use hearing protection around the pigs. He also reported that his recreational noise exposure included gunfire while turkey hunting. He reported that he did not use hearing protection while hunting because he would not be able to hear the turkeys. He also reported that he rode ATVs and that he wore a hat with ear flaps, but otherwise, did not use hearing protection while riding. The Veteran reported that he experienced constant ringing in his ears that he first noticed somewhere between 10 and 20 years ago. He reported that the onset was not associated with any particular event. Based on the history provided by the Veteran and the examination results, the examiner diagnosed bilateral hearing loss disability and tinnitus. The examiner opined that it was less likely as not that the Veteran's bilateral hearing loss disability was attributable to noise exposure in active service. In this regard, the examiner reported that the Veteran had excellent hearing sensitivity at the time of his separation from active service; that the Veteran did not become aware of his hearing loss until 30 years following his separation from active service and did not seek actual treatment for his hearing loss for several years after he first noticed a problem; and finally, that the Veteran also had civilian noise exposure subsequent to his separation from active service. The examiner also opined that it was less likely as not that the Veteran's tinnitus was related to noise exposure during active service. In this regard, the examiner reported that tinnitus which resulted from acoustic trauma, such as would occur in combat, was generally described as having an immediate onset and the events surrounding the onset were generally remembered very specifically. She reported that the Veteran's vague description of the onset of his tinnitus was not consistent with tinnitus resulting from acoustic trauma. Additionally, the examiner noted that even if the Veteran's tinnitus had its onset 20 years ago, as reported, that would still have been quite remote from his time in active service. In the February 2013 Memorandum Decision remanding the case to the Board, the Court noted the following notation in a July 2006 VA examination report: "E. DIAGNOSIS: The impression is that he has bilateral sensorineural-type hearing loss with tinnitus, most likely from shelling in Vietnam, and he is referred to Audiology." The Court observed that this medical report reflects the physician discussed the Veteran's medical history and conducted a physical examination of his ears. The Court observed that the Board decision failed to address or discuss this evidence. The Board in June 2013 ordered a new VA audiological examination. In August 2013, the Veteran was afforded a VA audiology examination. It was noted that noise exposure in service was conceded. The examiner reviewed the claims folder. The examiner opined that the Veteran's hearing loss is not at least as likely as not (50% probability or greater) caused by or a result of an event in service. The examiner provided the following detailed rationale to support this opinion. His audiograms at his entrance exam in 1968 and separation exam in 1970 both indicate he had normal hearing at all frequencies, bilaterally. Although noise exposure in the service is not disputed, there is no evidence of any complaint, diagnosis, nor treatment of hearing loss in the service. His Audiology C&P report from 2006 states, "THE VETERAN STATES THAT HIS HEARING HAS BECOME GRADUALLY WORSE OVER TIME, BUT HAS BECOME ESPECIALLY NOTICEABLE IN THE LAST 7 OR 8 YEARS." That would place the onset at about 1998, about 28 years after his active duty service. It also states, "HE SPENT ONE YEAR IN COMBAT IN VIETNAM. THE VETERAN STATES THAT HIS OCCUPATIONAL NOISE EXPOSURE INCLUDED FARMING WORK PRIOR TO THE SERVICE. HE RODE ON OPEN TRACTORS, BUT DENIES NOISE, AS THE OPEN AIR 'BLEW THE NOISE AWAY.' SINCE THE SERVICE HIS PRIMARY OCCUPATION HAS BEEN REPAIRING AND CALIBRATING SCALES. HE DENIES ANY NOISE EXPOSURE WITH THIS JOB. HOWEVER, HE STILL MAINTAINS SOME LIVESTOCK WITH PIGS AND COWS. HE DOES NOT WEAR HEARING PROTECTION WHEN AROUND THE PIGS. HIS RECREATIONAL NOISE EXPOSURE HAS INCLUDED TURKEY HUNTING. HE DOES NOT WEAR HEARING PROTECTION, AS HE WANTS TO HEAR THE TURKEYS IN THE WOODS. IN RECENT YEARS HE HAS BEGUN WEARING A GAME EAR (AMPLIFIER) TO HEAR THE TURKEYS EARLIER. HIS OTHER RECREATIONAL NOISE EXPOSURE INCLUDES ATV RIDING. HE WEARS A WOOL HAT WITH EAR FLAPS, BUT NO HEARING PROTECTION...THERE ARE NO AUDIOGRAMS ON FILE BETWEEN 1970 AND 2005. THE VETERAN STATES THAT THE HEARING PROBLEM OCCURRED GRADUALLY, BUT BECAME ESPECIALLY NOTICEABLE 7 OR 8 YEARS AGO. EVEN SO, IT APPEARS THAT HE DID NOT SEEK AUDIOLOGICAL SERVICES UNTIL ONE YEAR AGO. HIS AWARENESS OF A PROBLEM IS VERY REMOTE FROM TIME OF SERVICE. THE VETERAN HAS HAD NOISE EXPOSURE IN CIVILIAN LIFE." Per his "TRANSCRIPT OF HEARING BEFORE BOARD OF VETERANS APPEALS" dated 11-1-2011, he stated he first started to notice his hearing loss "Truthfully, about 20 years ago...", which would have been circa 1991, about 21 years after his active duty service. He also replied, when asked how long his wife had been telling him to turn the TV down, "About 20 years, but it got worse. I mean, I would say the last, say -- oh, I'm going to say the last - at least the last eight years it had got to where she--you know, she just said, you better do something. I can't put up with anymore." He also replied that he has recreational noise exposure from hunting. When asked if he had done that just since the service, he replied, "No. I have done it all of my life, sir." The examiner also opined that tinnitus was less likely as not due to service. Again, he offered a detailed rationale. Although noise exposure in the service is not disputed, there is no evidence of any complain, diagnosis, nor treatment of tinnitus in the service. His audiograms at his entrance exam in 1968 and separation exam in 1970 both indicate he had normal hearing at all frequencies, bilaterally. His 2006 Audiology C&P report states, "HIS C-FILE IS SILENT ON TINNITUS. THE VETERAN REPORTS CONSTANT RINGING TINNITUS BILATERALLY. THIS PROBLEM WAS FIRST NOTICED SOMEWHERE BETWEEN 10 AND 20 YEARS AGO, BUT ITS ONSET IS NOT ASSOCIATED WITH A PARTICULAR EVENT." That would place the onset at around 1986, about 16 years after his active duty service. Per his "TRANSCRIPT OF HEARING BEFORE BOARD OF VETERANS APPEALS" dated 11-1-2011, he stated he first started to notice his hearing loss "Truthfully, about 20 years ago...", which would have been circa 1991, about 21 years after his active duty service. He also replied, when asked how long his wife had been telling him to turn the TV down, "About 20 years, but it got worse. I mean, I would say the last, say -- oh, I'm going to say the last -- at least the last eight years it had got to where she--you know, she just said, you better do something. I can't put up with anymore." He also replied that he has recreational noise exposure from hunting. When asked if he had done that just since the service, he replied, "No. I have done it all of my life, sir." The Board finds that the preponderance of the evidence is against these claims. Initially, it notes that there is no indication that the Veteran was diagnosed with bilateral hearing loss disability within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. Moreover, the preponderance of the evidence is against the claim for bilateral hearing loss disability and tinnitus on a direct basis. The record does not show and the Veteran does not contend that he has had continuous hearing loss and tinnitus since service. Rather, the record reflects that he describes an initial awareness of hearing loss and tinnitus in excess of a decade after service. The diagnosis of hearing loss was made in approximately 2005, over 35 years after service separation. The Veteran's statements taken as a whole do not support the theory that there was continuous hearing loss or tinnitus since service. Moreover, the Veteran has not indicated that he had treatment for hearing loss other than that beginning in 2005, many years after service. The Veteran is competent to testify as to observable symptoms such as hearing difficulty. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno, supra. Although the Board notes that a layperson is competent to report on the onset and continuity of current symptomatology, it observes that the Veteran does not actually appear to argue that there was such continuity since service. Rather, he simply urges that the current hearing loss and tinnitus are related to noise exposure in service. The VA opinion in February 2013 is afforded considerable weight in the determination that the Veteran's current bilateral hearing loss disability and tinnitus are not related to his service. In the examination report, the examiner considered the Veteran's bilateral hearing loss by conducting a thorough examination which included consideration of his reported history of hearing difficulties, tinnitus and acoustic trauma. He also reviewed the claims folder. The examiner also provided detailed rationale, with references to the record, to support the opinions given. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting a veteran's position); Lee v. Brown, 10 Vet. App. 336, 338 (1997) (an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words). The Board finds this opinion to be highly credible and probative of the issue of nexus, or the lack thereof, as to both hearing loss and tinnitus. The Board has considered the July 2006 opinion that pointed out by the Court but finds it less probative than the 2013 opinion because it is not supported by as thorough or detailed rationale. While the Board has considered the Veteran's contentions, it finds them less probative as to the issue of the etiology of the current hearing loss and tinnitus. The treatment record following service does not provide any nexus between the current hearing loss disability or tinnitus and service. Rather, it reflects that the Veteran first sought treatment many years after service. The treatment records are considered to have no significant probative value as to establishing a nexus between current disability and service. Generally, the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). To the extent that the Veteran does urge that he has had hearing loss and tinnitus since service, his complaints are found to be not credible. The passage of at least a decade between discharge from service and the first complaint and the diagnosis of hearing loss and tinnitus, and the lack of complaints in the record, outweighs his assertions. Accordingly, based on the evidence and analysis above, the Board finds the criteria for service connection for bilateral hearing loss disability and tinnitus are not met; the claims must therefore be denied. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54 . ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs