Citation Nr: 1338967 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-12 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from July to November 1964, with additional periods of active duty for training (ACDUTRA) with the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In December 2012, the Veteran appeared before the undersigned Veterans Law Judge (VLJ), via videoconferencing equipment, to present testimony in support of his claims. Review of the Virtual VA paperless claims processing system does not reveal additional documents pertinent to the Veteran's claims, except for a copy of the transcript from the December 2012 hearing. FINDING OF FACT Neither bilateral hearing loss nor tinnitus were incurred in service or caused by service. CONCLUSION OF LAW Bilateral hearing loss and tinnitus have not been shown to be the result of disease or injury incurred in or aggravated by active military duty nor may they be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the competency and credibility of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is needed to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran was sent the required notice in October 2010, prior to the initial adjudication of these claims. He has not alleged any prejudicial deficiency in the notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA also provides for a duty to assist the claimant in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). In this case, the Veteran's service treatment records (STRs) have been obtained and associated with the file. The Veteran has not identified any treatment providers whose records he wished requested, and he has not received treatment at a VA medical center for his hearing loss and tinnitus. During his December 2012 personal hearing, he said that a doctor related his hearing loss to service during an examination provided by his employer in the 1980's, but he did not authorize VA to attempt to obtain it, and a copy was not received from him. He indicated at his hearing that he did not want the record left open so that he could submit additional evidence and that the doctors that had treated him in the past were dead or retired. Accordingly, there are no outstanding records that he wished to be associated with his claim that have not been requested. The Veteran was provided a VA examination in May 2011. The Board finds the examination report is adequate to adjudicate the Veteran's claims. It was based on a review of the record and a thorough examination, including consideration of the Veteran's contentions regarding the onset of symptomatology. Accordingly, the Board finds that VA's duty to assist with respect to development of the claim has been met. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). In regard to the Veteran's December 2012 personal hearing, the Court has held that a VLJ presiding over a personal hearing must fully explain the issues under consideration and suggest the submission of evidence that may have been overlooked in order to comply with due process requirements. Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103(c)(2) (2013). The Board finds these requirements have been met. At the outset of the hearing, the undersigned noted the issues that were under appeal, and asked him to explain why he thought his disabilities were due to active duty service. During the hearing, the Veteran mentioned hearing tests conducted by his employer in the 1980's, and he said that the doctor told him that hearing loss and tinnitus were due to his service. He was asked whether he wanted the record left open so he could attempt to retrieve those records, but he did not want to do that. That was the only treatment that he had reported receiving for these disabilities. He has not since asserted a failure to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the requirements of 38 C.F.R. § 3.103(c)(2) have been met. Service Connection The Veteran alleges he was exposed to hazardous noise during his active duty service, as well as during subsequent "summer camp" training for the National Guard. He asserts that he worked with heavy equipment and delivered the Howitzer shells to fellow servicemen while they were shooting, along with his work as a supply clerk, which also exposed him to traumatic noise. He has also asserted that he first noticed the symptoms of hearing loss and tinnitus within a few years of basic training. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In addition, service connection may 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 active service. 38 C.F.R. § 3.303(d). The term "active military service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA (inactive duty for training) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a) (2013). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty (other than full-time duty) prescribed for Reserves, as well as duty (other than full-time duty) performed by a member of the National Guard of any State. 38 C.F.R. § 3.6(c), (d). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated by active service, while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24) , 106, 1131 (2013). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1113. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 (2013). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 38 C.F.R. § 3.303(d); See Hensley, supra. The Veteran was on active duty from July 7 to November 7, 1964, with periods of ACDUTRA in August 1963, August 1965, June 1966, June 1967, October 1967, November 1967, and August 1968. A June 1963 medical examination shows a normal clinical evaluation of the ears, and a 15/15 on the whispered and spoken word tests. In July 1964, he did not complain of hearing trouble, and his ears were again evaluated as normal. An audiogram revealed the following puretone threshold, in decibels: HERTZ July 1964 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -10 (0) / 5 (10) LEFT -5 (10) -10 (0) -10 (0) / 0 (5) Prior to November 1967, service departments used American Standards Association (ASA) units to record puretone sensitivity thresholds in audiometric measurement. After November 1967, service departments used ISO-ANSI (International Standards Organization-American National Standards Institute) units. The table above shows the ASA measurements recorded on the July 1964 periodic examination, with the comparable ISO-ANSI measurements shown in parentheses. Measurements were not taken at 3000 Hertz. His ears were clinically evaluated as normal in October 1964, and he made no complaints of hearing trouble or tinnitus. An audiogram revealed the following puretone thresholds: HERTZ Oct. 1964 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) -5 (5) / 10 (15) LEFT 5 (20) 0 (10) -5 (5) / 15 (20) In March 1968, his ears were clinically evaluated as normal, and he scored a 20/15 in whispered word tests. In a September 2010 questionnaire, the Veteran indicated his tinnitus was constant, and that it started "during the service." He thought it was a result of loud gun fire. At the May 2011 VA examination, he was diagnosed with sensorineural hearing loss and tinnitus. He reported noise exposure in the form of M1, artillery, generators, and trucks. He said that he was not exposed to harmful noise at his post-service employment, and had limited recreational noise exposure. He complained of intermittent tinnitus that started sometime between 1963 and 1969. An audiogram revealed the following puretone thresholds: HERTZ May 2011 500 1000 2000 3000 4000 RIGHT 20 25 25 35 55 LEFT 25 15 25 55 75 The examiner opined that hearing loss was not related to service. As support, he noted the Veteran's records from service all showed hearing within normal limits. He acknowledged the standard threshold shift in the left ear at 4000 Hertz, but noted that hearing was still clinically normal, despite the shift. He indicated that he could not provide an opinion on whether tinnitus was related to service without resorting to speculation because the Veteran was unable to remember when his symptoms began with any specificity. During his personal hearing in December 2012, the Veteran first said that he began noticing hearing loss and tinnitus a few years after basic training, but then indicated he was not sure. He said he was not given hearing protection, and it seemed to him he did not hear as well after a couple years of exposure to shooting. He denied ringing in the ears right after shooting occurred, and said it did not start until after basic training. He indicated that he definitely had hearing loss diagnosed during the 1980's, as his employer required hearing tests. He also said that a physician has related his hearing loss and tinnitus to service. Based on the foregoing, the Board does not find service connection warranted for hearing loss or tinnitus. In regard to hearing loss, the only medical nexus opinion is negative. The VA examiner opined that it was not related to service, despite the reported exposure to noise, because contemporaneous hearing tests showed hearing within normal limits. He acknowledged that the Veteran had a threshold shift in the left ear at 4000 Hertz, yet indicated that his hearing was still within normal limits. Further, service connection for hearing loss cannot be established via presumption, as it was not diagnosed during service or within one year from separation from service. 38 C.F.R. §§ 3.307, 3.309. In regard to tinnitus, the VA examiner indicated that he could not provide an opinion without speculating, because the Veteran was unable to provide a narrower time frame for when his symptoms began. Because tinnitus is subjectively diagnosed, the Veteran's assertions regarding onset and severity are important factors in forming an opinion on etiology. The Veteran has been inconsistent in his statements alleging when he first noticed his tinnitus, finally providing a rather large timeframe of sometime between 1963 and 1969. He denied that his ears began ringing after exposure to shooting. Without any other evidence to consider, and no clear indication of when it started, the Board finds that it is clear the examiner arrived at his inability to opine on the question after due diligence in seeking the relevant medical information of record that would have a bearing on the question. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Veteran's statements that his hearing loss and tinnitus are related to noise exposure from service are not probative. He has not been shown to have the training and expertise to competently render an opinion on the cause of his hearing loss or tinnitus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Indeed, this theory has been investigated by an audiologist, who did not find it likely that hearing loss was related. The examiner was unable to opine on tinnitus, but the Veteran also denied that it began following exposure to loud noise. His statement that he has had hearing loss and tinnitus since the general time period of his service is also not probative. The Veteran is competent to attest to experiencing difficulty hearing. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, he has also indicated that he is not really sure when his symptoms started, and could only definitively state that he had hearing loss sometime in the 1980's, and tinnitus sometime between 1963 and 1969. His own uncertainty renders this statement unreliable. Further, records from service show that his hearing was within normal limits, and that he made no complaints of ringing in his ears. Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran's statement alleging that a physician has told him that his hearing loss and tinnitus are related to service is also not probative. The connection between what a physician said and a layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute probative medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Again, the Veteran was offered the opportunity to leave the record open so that he could submit additional evidence in support of his claim, including a medical opinion, but he declined. Accordingly, the preponderance of the evidence is against these claims, and in this situation, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). These claims must be denied. ORDER The claim of entitlement to service connection for bilateral hearing loss is denied. The claim of entitlement to service connection for tinnitus is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs