Citation Nr: 1339713	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  12-17 617	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Sarah Plotnick, Associate Counsel




INTRODUCTION

The Veteran served on active duty from May 1966 to May 1968.

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2010 rating decision in which the RO denied the claims for service connection for bilateral hearing loss and tinnitus.  In January 2011, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in April 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2012.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished.

2.  The Board accepts the Veteran's assertions of noise exposure in service as credible and consistent with the circumstances of his service.

3.  Although the Veteran currently has hearing loss in each ear to an extent recognized as a disability for VA purposes, there is no evidence of hearing loss for many years after service, and the only competent, probative opinion of record to address the question of whether there exists a medical nexus between the Veteran's in-service noise exposure and his bilateral hearing loss weighs against the claim.

4.  Although the Veteran currently asserts that he experiences tinnitus, there is no credible, persuasive evidence of tinnitus for many years after service, and the only competent, probative opinion of record to address the question of whether there exists a medical nexus between the Veteran's in-service noise exposure and current tinnitus weighs against the claim.


CONCLUSION OF LAW

1.  The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2013). 

2.  The criteria for service connection for tinnitus are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

A May 2010 pre-rating letter provided pertinent notice to the Veteran in connection with his claims for service connection for bilateral hearing loss and tinnitus.  That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA.  The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates (in the event service connection is granted), as well as the type of evidence that affects those determinations.  Hence, the May 2010 letter meets the VCAA's content and timing of notice requirements.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file includes the Veteran's VA treatment records and examination report.  Also of record and considered in connection with the appeal are various written statements provided by the Veteran.  The Board finds that no additional RO action to further develop the record in connection with either claim for service connection, prior to appellate consideration, is required.

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). 

II.  Analysis

Service connection may be granted for a disability resulting from a 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.  Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge from 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). 

Certain chronic diseases, such as organic disease of the nervous system, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for organic disease of the nervous system) even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  VA's Veterans Benefits Administration Adjudication Manual states that "sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.

The United States Court of Appeals for the Veteran recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Although tinnitus is not among the diseases listed in section 3.309(a), given the nature of the disease, as discussed below, the Board will consider whether the Veteran's assertions of continuity of ringing in the ears, along with assertions as to continuity of diminished hearing, provide a basis for allowance of either claim.

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran asserts that he is entitled to service connection for bilateral hearing loss and tinnitus as the result of acoustic trauma during service.  Specifically, he contends that he was exposed to loud noises during his service as a helicopter mechanic, and he experienced ringing in his ears at that time and has continued to experience such problems since service.  The Board notes that the Veteran's VA Form DD-214 shows that his military occupational specialty (MOS) was helicopter mechanic.  Thus, it is conceded that the Veteran had noise exposure during service.

Here, an in-service injury and current disabilities are not in question.  The Veteran is competent to assert experiencing injury, such as in-service noise exposure.  As such, and because the Board finds no reason to question the veracity of the Veteran's assertions in this regard, and the Board accepts his assertions of significant in-service noise exposure as credible and consistent with the circumstances of his service.  See 38 U.S.C.A. § 1154.  Moreover, audiometric and speech discrimination testing reflected in an August 2010 VA audiological examination confirm that he has bilateral hearing loss to an extent recognized as a disability for VA purposes, and examiners have documented that the Veteran experiences tinnitus.

The evidence of record fails to establish-by competent, credible, and persuasive evidence-that the Veteran's bilateral hearing loss or tinnitus is etiologically related to service.  

Service treatment records are negative for complaints regarding or treatment for any hearing loss or tinnitus.  On separation examination in May 1968, audiological examination was normal.  In fact, some of the Veteran's pure tone thresholds showed improvement upon separation.

On audiometric testing conducted in conjunction with the Veteran's March 1966 enlistment examination, the pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
-
50
LEFT
10
5
10
-
25

On audiomentric testing during the May 1968 separation examination, pure tone thresholds were as follows:





HERTZ



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

The Veteran underwent an August 2010 VA audiological evaluation.  The VA audiologist noted that the Veteran's claims file was available and reviewed.  Audiometric testing performed at that time revealed the following pure tone thresholds, in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
40
85
80
80
LEFT
10
65
75
70
75

Speech discrimination tests revealed speech recognition ability of 54 percent in the right ear and 48 percent in the left ear.  The VA audiologist discussed the Veteran's post-service noise exposure.  The Veteran indicated that after service he worked for 33 years as a baggage handler with flight line noise, but was afforded hearing protection.  He also worked as a gunsmith for 25 years.  Based upon these findings, the audiologist diagnosed the Veteran with severe high frequency sensorineural hearing loss bilaterally.  The audiologist opined:

At present, there is no evidence of record to suggest this hearing loss was incurred or sustained over the course of service.  The entrance audiogram indicating a pre-existing 4,000 cycle notching on the right ear was not evidenced on discharge with normal audiogram across all frequencies.  Absent any continuity or complaint between time of discharge up to this date, there is no indication that there was a nexus between military noise and the hearing loss that we see as of this date.  The veteran's tinnitus is more likely than not related to this high frequency hearing loss than to previous military noise.

Post-service, the relevant medical evidence of record includes a February 2010 treatment report and an August 2010 VA examination report.  The Veteran stated in his January 2011 NOD that he would be submitting a private medical opinion.  However, he did not submit any such opinion, and there is no indication that the Veteran underwent a private audiological examination.

The Board notes that the absence of in-service evidence of hearing loss disability is not fatal to the claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Likewise, pertinent to the Veteran's claim for tinnitus, service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

Considering the totality of the evidence of record, the Board finds that competent probative evidence weighs against the claims for service connection for hearing loss and tinnitus.  

The Board acknowledges that, during the August 2010 VA audiological examination, the Veteran reported that his hearing loss began "sometime around 1966 to 1968," and that in his April 2010 VA Form 21-526, the Veteran stated that his bilateral hearing loss and tinnitus began in 1966.  The Board recognizes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Specifically, tinnitus (or, ringing in the ears) is the type of disability that the Veteran is competent to establish, on the basis of his own assertions (see Charles v. Principi, 16 Vet. App. 370 (2002)), and that, under certain circumstances, credible assertions of continuous symptoms may be sufficient to establish service connection (see, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  However, when assessing credibility and probative value, such assertions must be weighed against medical and other pertinent evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

In this case, although the Veteran is competent to assert that diminished hearing and tinnitus began in service and have continued to date, here, the Board finds that these statements are neither credible nor persuasive.  In this regard, the Board finds that the Veteran's service discharge examination reflecting hearing within normal limits and no complaints related to hearing loss or tinnitus to be more persuasive than statements the Veteran made more than 40 years later regarding the onset of any ear problems.  With respect to post-service medical records, the first evidence of any tinnitus is documented the report of a February 2010 VA examination. 

Here, on the question of medical etiology of each disability under consideration, the Board finds that opinions reflected in the August 2010 VA examination report is highly probative.  In this case, the VA audiologist determined that there was less likely than not a relationship between the Veteran's bilateral hearing loss and tinnitus and service.  In so finding, the Board notes that the August 2010 examination report reflects a complete and thorough examination of the Veteran, with complete audiometric testing results and review of the claims file.  The audiologist provided a specific rationale for this opinion, noting that testing results indicate that improvement, rather than diminishment, of Veteran's hearing during service.  Significantly, the August 2010 VA audiologist considered the Veteran's current assertions, but still rendered a negative opinion for both disabilities under consideration.  This probative opinion weighs against the Veteran's assertion that hearing loss and tinnitus are due to in-service noise exposure.  The Board finds the medical opinion by the VA audiologist to be significantly more probative than the Veteran's lay assertions as to the etiology of his hearing loss and tinnitus. 

The Veteran is also not entitled to service connection for bilateral sensorineural hearing loss on a presumptive basis.  Nothing in the claims file suggests that the Veteran's hearing loss manifested within the presumptive period.  The Veteran's separation examination revealed normal hearing.  In fact, as noted above, many of the Veteran's pure tone thresholds showed improvement at separation.  Thus, he is not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomology.

For all of the foregoing reasons, the Board finds that the claims for service connection for hearing loss and tinnitus must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs