Citation Nr: 1338728 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 13-06 367 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from February 1954 to February 1956. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision. It is noted that the Veteran was scheduled for a Board hearing in October 2013. Several days prior to the hearing, the Veteran's representative wrote to indicate that the Veteran would not be able to attend his hearing due to physical health issues. There was no indication that the Veteran desired to postpone his hearing. See 38 C.F.R. § 20.702(d). As such, his hearing request is considered withdrawn. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Symptoms of hearing loss were not chronic in service. 2. Symptoms of hearing loss were not continuous since service. 3. Hearing loss did not manifest to a compensable degree within one year of service separation. 4. Currently diagnosed hearing loss is not causally or etiologically related to service. 5. Currently diagnosed tinnitus is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by service nor may it be presumed to have been incurred therein. 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 service nor may it be presumed to have been incurred therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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 provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran filed a claim in September 2009 seeking service connection for hearing loss and tinnitus; which he asserted began in 1955 while he was serving in an armor unit, firing artillery shells and tank shells. He contended that the concussive and acoustic trauma had affected him since the blasts. The Board notes that the Veteran's service medical records could not be located, possibly because they were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri (NPRC). In a case like this in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection; rather, it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). The Veteran's DD-214 is of record and confirms that he served as a tank gunner. As such, military noise exposure is consistent with the places, types, and circumstances of the Veteran's service and his exposure is conceded. 38 U.S.C.A. § 1154(a). Simply stated, the Board assumes the Veteran was exposed to very, very, loud noise in service, therefore, the loss of the service records from 50 years ago is not pertinent as the Board has assumed the Veteran's statement regarding his service are accurate. The Veteran's claims file is void of any medical evidence dated between his separation from service in February 1956 and his filing of a claim in 2009. It is noted that the Veteran filed a claim for educational benefits in 1968 and sought assistance from VA vocational rehabilitation in 1975, suggesting some familiarity with the VA system, but he did not file a claim seeking service connection for either hearing loss or tinnitus for more than 50 years after service. In his August 2011 notice of disagreement, the Veteran wrote that he was appealing the refusal of medical treatment for the ringing in his ears. He stated that in the summer of 1954, he was on the tank firing range and while he was getting into a tank, the "green flag" was shown and a 90 mm gun was fired. He did not believe the incident was reported, but he recalled people getting chewed out for it. He asserted that his ears began ringing at that point, and he recalled that being asked at discharge if he still had the ringing in his ears, but the Veteran gave no indication as to how he answered such a question. Indeed it is unclear from the Veteran's statements what the onset and duration was of any ringing or whether it ever resolved. In September 2012, the Veteran underwent a VA examination, the results of audiometric testing showed the following, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 55 60 55 70 LEFT 40 60 70 75 100 The examiner found the test results to be valid for rating purposes. On speech discrimination testing, the Veteran had 80 percent in his right ear and 52 percent in his left ear. The examiner diagnosed sensioneural hearing loss in both ears for VA purposes. The examiner noted that service treatment records were unavailable. He observed that from a review of the claims file, the Veteran applied for a program of education and training in August 1968 which implied good hearing sensitivity. Having reviewed the claims file and examined the Veteran, the examiner found no evidence to establish a nexus. The examiner noted: the Veteran's report that his bilateral hearing loss had a gradual onset for years; that he first sought evaluation for his hearing loss approximately 25 years earlier in Muskegon; that he experienced constant ringing in his ears for many years, since he got out of the service; the Veteran's account of the incident on the tank firing range, and his report that that after firing the main gun, he experienced ringing in his ears that lasted seconds; that following service, the Veteran worked from 1958-78 as a chemical operator/production worker and from 1979-2003 worked in a truck suspension production worker in the parts department. The Veteran stated that hearing protection was required in the truck plant and he did not recall undergoing any hearing tests. The Veteran denied any post-service hunting; shooting; motorcycle, power boat, or jet ski use; race car driving; or power tool use. The Veteran stated that he had used weed eaters and mowers for 1.5 hours/week for 40-50 years. With regard to etiology, the examiner stated that it was less likely than not that the Veteran's hearing loss either began during or was otherwise caused by his military service. The examiner explained that the bilateral hearing loss and tinnitus were most likely the result of the Veteran's extensive history of occupational noise exposure in civilian life and presbycusis at the age of 79. The examiner explained that the Veteran served for two years in an armored division, and stated that such a length of noise exposure was typically insignificant in causing occupational noise exposure at such a young age. To support this conclusion, the examiner cited to Theory & Management, by Dr. James B. Snow, Jr. The examiner added that in the United States, most hearing loss develops gradually during middle or old age, without any identifiable cause or association other than advancing years. The examiner added that epidemiologic studies showed that presbycusis is the most prevalent cause of tinnitus, followed by excessive noise exposure. According to a study, the examiner indicated that the chances of the Veteran exiting military service with significant hearing loss were less than 50/50 probability (11.5 percent). He also noted that in 1994, among U.S. Army enlisted combat arms (infantry, artillery, and armor), 25.5 percent of soldiers with more than 17.5 years of service had a significant hearing loss; 15.3 percent of those with 12.5-17.5 years had hearing loss; and only 5.4 percent of solders with less than 2.5 years had a hearing loss. The examiner noted that in 1974, the percentage of soldiers with hearing loss after 17.5, 12.5-17.5, and 2.5 years of service were 54, 48, and 12 percent respectively. The examiner found no evidence to establish chronicity or continuity of care, as the Veteran reported a gradual onset of his bilateral hearing loss and tinnitus over the years. He noted that the Veteran first sought hearing evaluation approximately five years earlier which was decades after his military separation. The examiner acknowledged the Veteran's related incident from the firing range, but noted that the incident was likely temporary tinnitus, noting the Veteran's report that his ringing lasted seconds "probably". The examiner noted that any hearing disturbances that the Veteran experienced during his military service were most likely temporary in nature, noting that research studies had shown that hazardous noise exposure had an immediate effect on hearing, and was usually temporary at first. He noted that it did not have a delayed onset nor was it progressive or cumulative. The examiner cited to a number of studies to support this conclusion, including one that found that only seldomly does noise exposure cause a permanent tinnitus without also causing hearing loss. The examiner added that the tinnitus the Veteran may have experienced during service was only temporary in nature, noting that brief, spontaneous tinnitus, lasting seconds to minutes was a nearly universal sensation, occurring routinely after noise exposures that were sufficiently intense and/or prolonged to cause temporary injury to the ear. The examiner noted that according to the "Noise Manual" and OSHA regulations, the degree of any noise-induced hearing loss was highly correlated with the intensity of the noise and the length of exposure time. Here, in civilian life, the Veteran had 43 years of occupational industrial noise exposure, which the examiner observed was far greater than his two years of military noise exposure. The examiner added that presbycusis at the age of 79 was a significant contributing etiology. It is important for the Veteran to understand that this report is highly detailed and must be provided high probative weight by the Board, outweighing the Veteran's lay statements. In his substantive appeal, the Veteran stated that he was of the opinion that his ears were damaged by a 90 mm cannon blast while he was climbing into a tank, he asserted that he reported his injuries to his superiors, but was denied medical care at the time of injury. He argued that at his separation physical the doctors noted the injuries to his ears and noted that his ears were still ringing. As noted, the Veteran is currently diagnosed with bilateral hearing loss and with tinnitus, and military noise exposure is clearly conceded. However, a current hearing disability and military noise exposure alone is insufficient to warrant service connection. Rather, it must be shown that the noise exposure actually caused the hearing loss. This may be done by the use of either a statutory presumption or by the use of competent evidence. Turing first to presumptive service connection, the weight of the evidence shows that symptoms of sensorineural hearing loss were not chronic during the Veteran's service. As noted, the Veteran's service treatment records are missing, which is unfortunate, but more than 50 years also elapsed between separation and his initial claim for hearing loss and tinnitus, during which time he had approximately 43 of industrial noise exposure. Yet, during this time, the Veteran, by his own, admission, did not seek any hearing treatment for nearly two decades after service. There is no medical evidence showing that hearing loss was diagnosed for VA purposes either during service or within a year of service. Even to the extent the Veteran would be competent to report diminished hearing acuity at separation, he would not be competent to diagnose hearing loss for VA purposes as such a determination would require both objective audiometric and speech recognition testing, which the Veteran could not perform on himself. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, at his examination, the Veteran reported a gradual onset of his bilateral hearing loss over the years, which weighs against a conclusion that the his symptoms were continuous since service. Therefore, the 38 C.F.R. § 3.303(b) presumptions have not been met. Nevertheless, service connection may be granted if the evidence establishes a nexus between the bilateral hearing loss and tinnitus and the Veteran's military noise exposure. Here, the Veteran was informed of the necessity to submit evidence showing a relationship between any claimed hearing loss and his period of service, but he has not obtained or submitted such evidence tending to show a relationship between current hearing loss and noise exposure during service. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, 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. As such, the Veteran is considered competent to describe his perception of diminished hearing acuity. However, the Veteran is not competent to offer an opinion concerning either the etiology of his sensorineural hearing loss as such determinations require both objective audiometric and speech recognition testing, which the Veteran cannot perform on himself. As such, the Board concludes that the question of the etiology of the Veteran's bilateral hearing loss disability is not amenable to lay observation alone and is too complex to be addressed by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As recounted above, the Board obtained a VA examination to investigate the etiology of the Veteran's bilateral hearing loss. Unfortunately, while the examiner confirmed that the Veteran did have a hearing loss disability for VA purposes, he wrote a long, well-supported opinion explaining exactly why it was less likely than not that the Veteran's bilateral hearing loss was the result of his military noise exposure. The examiner was fully apprised of the Veteran's military and post-military noise exposure; and he interviewed and examined the Veteran. The examiner also grounded his opinion in extensive research in the medical literature. Moreover, this opinion has not been questioned or undermined by any other medical evidence. As such, this opinion is found to be highly probative and entitled to great weight. Based on this conclusion, the evidence is against a finding that the Veteran's bilateral hearing loss either began during or was otherwise caused by his military noise exposure. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. With regard to tinnitus, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the high probative value of the medical opinion in this case cannot be discounted by the Board. The Veteran has at times contended that his tinnitus began in service. For example, in his notice of disagreement, he asserted that his ears began ringing at after an incident on the firing range. In his substantive appeal, he argued that at his separation physical the doctors noted the injuries to his ears and noted that his ears were still ringing. As noted, the service treatment records are regrettably not of record to confirm such an assertion. Nevertheless, the Veteran was provided with a VA examination at which he had the opportunity to explain the history of his tinnitus to a medical professional. Thus, the VA examiner became fully apprised of the Veteran's contentions. However, the examiner ultimately concluded that it was less likely than not, based on the Veteran's description of the onset and symptoms of his tinnitus, that the Veteran's tinnitus was the result of his military noise exposure. This opinion as noted above is well-reasoned, and grounded both in the evidence particular to this Veteran and in the medical literature. It has not been questioned by any medical evidence of record. As such, it is found to be the most probative evidence. To the extent that the Veteran is alleging that the ringing in his ears continued from 1954 through his two years in service and then for decades after service, such a contention is undermined by the fact that he did not report seeking any treatment for several decades after service. It is noted that the Veteran applied to VA for educational benefits in 1968 and then for vocational rehabilitation, but never filed any claim for service connection for tinnitus. Given the persuasive medical opinion, the Board concludes that the evidence is against the Veteran's claim for tinnitus, and it is therefore denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in September 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed him how disability ratings and effective dates were established. Thus, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained, and the Veteran has not reasonably identified any private treatment for his bilateral hearing loss and tinnitus. It is noted that the Veteran stated at his VA examination that he first sought treatment in approximately 1975, but he has never submitted any records from such treatment, identified a doctor, or given VA any information that would allow VA to independently obtain any outstanding records. 38 C.F.R. § 3.159(c)(1)(i) provides that a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. Here, VA sent the Veteran a letter in September 2009 asking him to submit or identify any private treatment received for hearing loss and tinnitus. He did not reply. VA sent the Veteran another letter in May 2010 asking him to identify any alternative sources of evidence of record that might support his claim and to complete a form, but he did not respond. Additionally, the Veteran's representative wrote a statement in support of his claim in November 2013 in which it was argued that the Board should grant the claim on the basis of the evidence that was provided, but there was no suggestion that any additional evidence needed to be obtained. As such, the Board finds that the Veteran has not provided enough information to identify and locate the existing records. As noted, the Veteran's service treatment records were unfortunately found to be unavailable. The Veteran was sent a letter in February 2010 requesting that he complete a NA Form 13055 to allow a search of the National Archives. The Veteran was again requested to submit any additional evidence he had. In May 2010, the RO made a formal finding of unavailability, noting that the Veteran had not returned the NA Form 13055 or provided any additional evidence. The Veteran was provided with a VA examination (the report of which has been associated with the claims file). The Board finds the most recent VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs