Citation Nr: 1338727	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  13-12 005	)	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

A. Budd, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1968 until June 1972.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  


FINDINGS OF FACT

1.  The most probative evidence of record fails to establish that it is at least as likely as not that the Veteran has bilateral hearing loss disability that was demonstrated in service or to a compensable degree within one year after service, or that is otherwise attributable to active military service.

2.  The Veteran's tinnitus is at least as likely as not caused by active service.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2013).  

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A.           § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.   With respect to the tinnitus claim, the Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist in that claim was harmless and will not be further discussed. 

A December 2010 VA letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson at 1333-34 (Fed. Cir. 2006). 

The Veteran's service treatment records, and post service private treatment reports, have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA).  38 C.F.R. § 3.159(c)(2).  

A VA examination was conducted in March 2011.  The Veteran has not argued, and the record does not reflect, that the examination was inadequate for purposes of determining entitlement to service connection for hearing loss.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examiner reviewed the claims folder, conducted a physical examination of the Veteran, and provided an opinion as to whether there was a nexus to service with rationale.  There is no indication in the record that any evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).   

Law and Regulations

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110; 38 C.F.R. §3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection on a direct basis, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  It may also include statements conveying sound medical principles found in medical treatises, and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Once lay evidence is found to be competent, the Board has a duty to address the credibility and weight to be given to the evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a).  The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Facts

The Veteran contends that he has hearing loss and tinnitus due to his exposure to explosions during his military service.  The Veteran's military occupational specialty (MOS) was an explosives ordnance disposal specialist.  The Veteran's service treatment records (STRs) are negative as to complaints or record of hearing loss or tinnitus.  The Veteran's STRs contain three different hearing tests - one upon the Veteran's induction into service in December 1968, one in September 1970, and one upon separation from service in March 1972.  The Veteran's initial audio test was performed before the military had adopted the ISO standard used today, and so must be converted.  After appropriate conversion, the results of the December 1968 audio test are as follows:





HERTZ


500
1000
  2000
3000
4000
RIGHT
15
5

10
20
LEFT
25
10

10
15


The September 1970 audio test results were as follows:




HERTZ



500
1000
2000
  3000
4000
RIGHT
0
0
5

10
LEFT
0
0
5

5

Upon separation from service in March 1972, the Veteran's hearing had not deteriorated significantly.  The results were as follows:





HERTZ



500
1000
2000
  3000
4000
RIGHT
5
5
5
     5
5
LEFT
15
10
10
     10
10

The Veteran denied hearing loss or ear trouble while in service during the September 1970 examination and the March 1972 examination.

A VA examination was held in March 2011.  The examiner reviewed the claims file, and took a history from the Veteran.  The report reflects that the Veteran reported that he had been exposed to explosions approximately once a month while serving in a disposal unit, and that explosions occurred almost daily while he was stationed in Vietnam.  The Veteran stated that hearing protection was not available.  The Veteran reported that, after service, he worked as a tax accountant and denied a history of civilian recreational noise exposure.  The Veteran reported tinnitus for both ears, noting that it was worse in his left ear.  He described his tinnitus as "crickets," and noted a "whistle" noise in his left ear that he had noticed approximately 3-4 times.  The report reflected that the Veteran had first started to notice the tinnitus within the last 5 years. 

 The examiner also performed an audio examination, the results of which are as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
25
25
LEFT
25
25
25
25
25

The results of a Maryland CNC speech recognition test were 100% in both ears.  The examiner found that the Veteran's hearing was within normal limits, and noted the lack of complaint in service regarding hearing loss or tinnitus.  The examiner found that it was not at least as likely as not that the Veteran's hearing loss or tinnitus was related to his service.

The Veteran submitted his notice of disagreement (NOD) in June 2011.  In this NOD he reiterated that his tinnitus started during service and clarified that during the exam he had stated that his tinnitus had grown worse in the last five years, not that it had started at that time.  The VA examiner gave an addendum opinion in February 2013 in which he reiterated the Veteran's denial of ear trouble upon separation from service, and stated that the Veteran's shifts in pure tone thresholds were not considered significant shifts in hearing.  While the examiner conceded that the Veteran may have experienced noise exposure in the military, he did not change his opinion on the likelihood of the Veteran's tinnitus being the result of service.  

Hearing Loss

The record has not shown bilateral hearing loss that is eligible for service connection.  A service connection claim requires, at minimum, medical evidence of a current disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, that means evidence of a current bilateral hearing loss disability which meets the criteria of 38 C.F.R. § 3.85.  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, or 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 Board recognizes the Veteran's claim that he believes that he has bilateral hearing loss disability for VA purposes.  However, diminished hearing is not synonymous with a hearing loss disability for VA purposes.  The Court in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  However, not all hearing loss constitutes hearing loss "disability" for VA purposes.  The Board may not grant the Veteran service connection, even at a noncompensable level, when the standard for a disability has not been met.  

In this case, the Veteran's VA examination has indicated 100 percent speech recognition as per the Maryland CNC Test, and no auditory threshold has been shown to be more than 25.  As such, the Veteran does not meet the criteria for hearing loss disability under 38 C.F.R. § 3.385, and the Board must deny service connection for bilateral hearing loss.   

In light of the lack of a current hearing loss disability for VA purposes, a discussion concerning chronicity and/or continuity of symptomatology is unnecessary.  38 C.F.R. §§ 3.303(b), 3.309(a); Walker, supra.

Tinnitus

As the Veteran's MOS was explosive ordnance disposal specialist, and he has reported being exposed to explosions on a regular basis, the Board will concede the Veteran's exposure to acoustic trauma in service.  The Veteran has asserted that he has experienced tinnitus since service.  The Veteran, as a lay person, is competent to diagnose tinnitus.  Charles v. Principi, 16 Vet. App. 370 (2002).  A layperson is also competent to testify as to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  The Board notes that tinnitus may be subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board acknowledges that there is some inconsistent evidence as to the onset of the Veteran's tinnitus.  At service discharge in 1972, he was given the opportunity to identify any history or symptoms associated with his in-service acoustic trauma, but did not indicate any pertinent complaints, and none are documented.  Moreover, the March 2011 VA examiner reports that the Veteran stated that his tinnitus had begun five years prior, which is inconsistent with his claim that tinnitus began in service.  However, the Veteran later offered clarification of the examiner's report by explaining that he had said that while his tinnitus had begun in service, it had grown worse in the last five years.  The Veteran consistently stated that his tinnitus began in service in his November 2010 claim, a December 2010 statement, and the June 2011 NOD that clarified the history he gave at the VA examination.  As the VA examiner's opinion has not fully addressed the Veteran's contention of experiencing tinnitus since service, it is not probative.   

In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, considering the evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran's statements about the in-service onset and continuity of his tinnitus are credible, and that the tinnitus was incurred in service.  See Walker, supra. 

Service connection for tinnitus is, therefore, granted.  See 38 U.S.C.A § 5107 (West 2002).  


ORDER

1.  Entitlement to service connection for bilateral hearing loss is denied.

2.  Entitlement to service connection for tinnitus is granted.




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs