Citation Nr: 1338517 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-06 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran had active service from August 1972 until August 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. The Veteran did not have a hearing loss disability for VA purposes on separation from service or within one year of separation, and a probative medical opinion fails to link his current bilateral hearing loss to service. 2. The most probative evidence fails to link the Veteran's current tinnitus to his service. CONCLUSIONS OF LAW 1. Criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper 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). The notice requirements apply to all five elements of a service connection claim, including 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify. Specifically, an October 2011 letter, sent prior to the initial unfavorable decision issued in June 2012, advised the Veteran of the evidence and information necessary to substantiate his service connection claims and establish a disability rating and an effective date. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information. Relevant to the duty to assist, the Veteran's service medical records and VA examination report have been obtained and considered. The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Veteran was afforded a VA examination in February 2012 in conjunction with the claim on appeal. The Veteran has not alleged that such is legally inadequate for adjudication purposes. The Board finds that the examination is adequate in order to evaluate the Veteran's bilateral hearing loss and tinnitus as it was performed by an audiologist and includes an interview with the Veteran, record review, an audiogram, and the Maryland CNC test. Moreover, the examiner provided clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the examiner addressed the functional effects of the Veteran's hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Service Connection Claims 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, 1131; 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, in-service incurrence or aggravation of a disease or injury; and 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Bilateral Hearing Loss The Veteran contends that he developed his currently-diagnosed bilateral hearing loss as a result of excessive noise exposure during service. Specifically, he worked as a voice interceptor operator. In his substantive appeal, the Veteran reported that he was exposed to acoustic trauma from the high pitched radios and static noise on a daily basis. During the three years he was enlisted, the Veteran worked an eight hour shift, five days per week. He contends the constant exposure to high pitched squelch and static of radio is what caused his hearing loss and tinnitus. He stated there was no hearing protection or other devices provided to help mitigate these exposures. The Board notes that the Veteran is competent to report a history of in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, his assertions are considered credible as they are consistent with his documented military occupational specialty of voice interceptor. Accordingly, the Board finds that the Veteran was exposed to the noise in service he described. The Veteran has been diagnosed with current bilateral hearing loss for VA disability adjudication purposes. A hearing loss disability is defined by regulation. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. An audiogram was conducted at the February 2012 VA examination. The audiogram showed auditory thresholds in the frequencies of 2000, 3000, and 4000 Hertz were above 40 decibels in both ears. Speech discrimination testing was 96 percent in both ears. Therefore, in February 2012, the Veteran had hearing loss for VA purposes. As such, the remaining inquiry is whether the Veteran's current hearing loss is related to service. The February 2012 VA examination is the first post-service evidence of record reflecting the Veteran's hearing loss. This VA examination is approximately 37 years after the Veteran's discharge from service. The VA examiner diagnosed bilateral sensorineural hearing loss (SNHL). However, he concluded 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 military service. In support of this opinion, he stated that the Veteran's entrance examination in 1972 and exit examination in 1975 documented normal hearing with no significant changes relative to entrance data. He further opined that the veteran's MOS may have exposed him to some high risk noise (although how often and to what degree is speculative) but the service treatment records do not indicate that this had a permanent negative impact on hearing. Furthermore, the separation physical did not indicate hearing loss as a potential problem. The examiner stated that reported post military occupational noise exposure is minimal; however, the Veteran did indicate that for recreation he shoots various guns on the range for target practice. The examiner opined that this may explain at least a percentage of his current hearing loss. The Board finds that this VA medical opinion is probative, as it was predicated upon a thorough, accurate review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Moreover, the examiner considered the Veteran's lay statements, discussing how his reported post-service activity supports his finding that hearing loss was not at least as likely as not caused by or a result of an event in military service. A medical nexus between service and a hearing loss diagnosed after service is not necessarily precluded by the lack of audiometric data reflecting hearing loss for VA purposes on separation from service, as the Veteran may nevertheless establish eligibility for service connection by submitting evidence that the current hearing loss is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, in the instant case, the Veteran has not submitted any evidence linking his hearing loss to service, aside from his own lay assertions. In his substantive appeal, the Veteran contends that his constant exposure to high pitched squelch and static of radios is what caused his current hearing loss. Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The etiology of hearing loss is a complex medical question. The Board finds the Veteran is not competent to render an opinion regarding the relation between his time in service and his current hearing loss. In his notice of disagreement, the Veteran also stated that his hearing loss began in service and has continued since that time. Despite the fact that the Veteran's service treatment records are negative for objective evidence of a bilateral hearing loss disability as defined by VA regulations, he is competent to allege a history of hearing problems that began in service and continuity of symptoms since service. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a), 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, the mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, in this case, there is no medical evidence showing hearing loss in service or within one year after service. The audiogram conducted at the Veteran's separation examination in June 1975 showed normal hearing. The separation examination also documented normal ears and drums. In the report of medical history dated June 1975, the Veteran reported that he does not have, and has never had, hearing loss or ear trouble. The first evidence of hearing loss is found in the February 2012 VA examination. The only medical opinion of record fails to relate the Veteran's hearing loss to service. Taken together with a failure to report hearing loss for 36 years after service, the Board determines that the Veteran's report of experiencing hearing loss continually since service is not credible. Finally, the Board has considered whether the Veteran may be entitled to hearing loss on a presumptive basis. Where a veteran served for at least 90 days during a period of war, as the Veteran did, and manifests certain chronic diseases, including organic diseases 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; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency SNHL an organic disease of the nervous system and therefore a presumptive disability. However, in this case, there is no evidence that the Veteran manifested high frequency SNHL to a degree of 10 percent within one year of August 1975, his date of separation. As noted above, the first evidence of his hearing loss is found in the February 2012 VA examination. Therefore, the Veteran is not entitled to service connection via presumption. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. Therefore, his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Tinnitus The Veteran contends that he has experienced tinnitus since his military service, and that it is due to his in-service exposure to excessive noise. Therefore, the Veteran claims that service connection is warranted for such disorder. As discussed in the previous section, the Board has found that the Veteran was exposed to the noise during service he described. Tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the remaining inquiry is whether the Veteran's current tinnitus is related to his in-service noise exposure. In the February 2012 VA examination, the VA examiner noted that the Veteran's service treatment records are negative for complaints or treatment of tinnitus. During the VA examination, the Veteran reported the onset of tinnitus 15 years ago. The examiner noted that onset of tinnitus 15 years ago is 20 years post military separation. The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The Board finds that this medical opinion is probative, as it was rendered after an examination of the Veteran and review of the Veteran's claims file and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The examiner's medical opinion is also consistent with the evidence of record which reflects that the Veteran first reported tinnitus in his claim for service connection in 2011, approximately 36 years after service. Moreover, during his 2012 VA examination, the Veteran stated onset of tinnitus more than 20 years post military service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The Board notes that in his original claim for service connection, the Veteran stated that his tinnitus began in 1972. The Veteran is competent to report the onset of his tinnitus during service and continuity of symptoms since service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, in his report of medical history at his separation examination in June 1975, the Veteran reported that he did not have, and has never had ear trouble or hearing loss. The Veteran's separation of service examination in June 1975 documented normal ears. Furthermore, the Veteran's claim that his tinnitus began in service is inconsistent with the Veteran's statement during the February 2012 VA examination that the onset of his tinnitus was 15 years ago (which is over 20 years after his separation from service). Taken together with a failure to report tinnitus for 36 years after service, the Board determines that the Veteran's report of experiencing tinnitus continually since service is not probative. Moreover, to the extent the Veteran has a current diagnosis of tinnitus that he relates to his reported in-service acoustic trauma, the Board notes that the Veteran is not competent, as a lay person, to etiologically relate his tinnitus to service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a Veteran's lay evidence; however, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, while the record is negative for post-service treatment for the Veteran's tinnitus, that alone does not render not credible his statements that he has experienced tinnitus since his military service. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case the Board has found that the Veteran's lay statements are not probative due to inconsistency. The Veteran has not consistently reported that his tinnitus began during military service and existed to the present time. In the February 2012 VA examination, the Veteran reported that tinnitus began only 15 years ago, which is 20 years after his separation from service. The Board finds that the Veteran's report of experiencing tinnitus continually since service is not credible. In sum, based on the Board's determination that the Veteran's report of experiencing tinnitus continually since service is not probative and the failure of the only medical opinion of record to link the Veteran's current tinnitus to service, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. Therefore, his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs