Citation Nr: 1340127 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-01 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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 WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2013, the Veteran appeared for a video conference at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The competent and credible evidence shows that the Veteran's bilateral hearing loss did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by an event, disease, or injury during active service. 2. The competent and credible evidence shows that the Veteran's tinnitus did not have onset during active service and was not caused by an event, disease, or injury during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a), 3.309(a) (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified by a letter dated December 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication of the April 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, or available evidence. VA provided the appellant with an adequate examination and obtained an adequate opinion in July 2009 concerning the Veteran's claims for service-connection for bilateral hearing loss and tinnitus. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran asserts that he developed hearing loss and tinnitus due to hazardous noise exposure from firing artillery while serving in the Army during the Korean War between 1952 and 1954. He described being routinely exposed to noise from thousands of artillery shells being fired. Service Connection Service connection may be granted for a disability resulting from a 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). To establish service connection for a current disability, a Veteran must show: the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called nexus requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases, such as organic diseases of the nervous system, including sensorineural hearing loss or tinnitus, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. 3.307, 3.309(a) (2013). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim for sensorineural hearing loss. 38 C.F.R. § 3.303(b) (2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). In general, a claimant is competent to provide lay statements of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The probative value of lay statements of symptoms and continuity of symptomatology, as with any evidence, depends in part on whether it is credible. The mere absence of corroborating contemporaneous medical evidence does not render statements incredible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2008). Sensorineural hearing loss is subject to service connection based up a continuity of symptomatology as an organic disease of the nervous system. 38 C.F.R. (2013). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connections based upon the continuity of symptomatology. Accordingly, the Veteran's claims of continuity of symptomatology have been considered and addressed. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, where hearing loss that is an organic disease of the nervous system manifested to a compensable degree within one year following separation from service, service connection shall be granted on the presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2013). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies of 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 (2013). The Board has reviewed all of the Veteran's service medical records. While the Veteran contends the he was informed that his records were destroyed, the Board cannot find any evidence to confirm that the Veteran's records were destroyed. The service medical records contain the Veteran's entrance and separation examinations and his dental records from service. The Veteran has not identified what type of records may be missing nor has he asserted that the files that may have been destroyed would show any reports of treatment for hearing loss. The Board acknowledges that where service records may be unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully resolving reasonable doubt in favor of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Pruitt v. Derwinski, 2 Vet. App. 83 (1992). However, the legal standard for proving a claim for service connection is not lowered. Rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant is raised. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. (2005). Relevant service medical records include a November 1951 induction examination that shows the Veteran's bilateral hearing registered a 15/15 on a whisper voice test. A September 1954 separation examination indicates the Veteran bilateral hearing registered a 15/15 on the whisper voice test and that his hearing was normal. Although the Veteran's service medical records are negative for signs of hearing loss, the Board has also considered the Veteran's statements that he was exposed to loud noises during service. The Veteran's duty assignment was as part of an artillery group of the Army, as noted on his service separation form. In giving due consideration to the places, types, and circumstances of his service in the an Army artillery group, noise exposure in service is conceded. 38 U.S.C.A. § 1154(a) (West 2002). The first medical diagnosis of sensorineural hearing loss is shown in post-service treatment records from October 1984. The Veteran underwent a private audiological examination and was diagnosed with bilateral sensorineural hearing loss. The Veteran also submitted additional private medical records from October 2007 that confirm the Veteran has bilateral hearing loss. The Board finds that those private medical records are probative in that they establish that the Veteran has a current disability. However, those medical records are silent as to the etiology of hearing loss and are also silent as to complaints of tinnitus. In September 2009, the Veteran was afforded a VA audiological examination concerning his claim for entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran reported noise exposure during service from the firing of artillery while he was stationed in Korea. He also reported to the VA examiner that he incurred occupational noise exposure from 37 plus years of working as a welder. The VA examiner also reported that the Veteran's recreational noise exposure was positive for hunting. The Veteran was diagnosed with mild to moderate bilateral sensorineural hearing loss and tinnitus. The VA examiner opined that the Veteran's hearing loss and tinnitus were less likely as not (less than 50 percent probability) caused by or a result of military service. The examiner's rationale was based on the lack of reports of hearing loss in service and the length of time that passed before the Veteran first sought treatment for hearing loss which was 30 years after his discharge. The examiner also relied on the Veteran's over 37 years of occupational noise exposure from being a welder and his recreational noise exposure due to hunting. The Board finds that the Veteran's statements concerning his disability are competent evidence as to experiencing hearing difficulties and tinnitus since active service. The Board notes that the Veteran reported that he was not issued any hearing protection equipment while stationed in Korea but that during his post-service occupation he was provided OSHA required hearing protection. The Board finds that his statements are not competent evidence to provide a nexus opinion regarding the cause of his hearing loss and tinnitus. The question of what causes hearing loss and tinnitus is complex and is not within the realm of a lay person's knowledge. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The diagnosis of hearing loss and tinnitus for VA purposes requires medical training and experience that the Veteran has not shown he possesses. The Veteran can report diminished hearing and the sound of ringing in his ears. However, the Veteran is not competent to provide a nexus opinion as to the cause of any hearing loss or tinnitus. The Veteran submitted an August 2009 statement from a private physician that reports the Veteran has been under the physician's care for some time and that the Veteran had hearing loss. The physician reported that "as far as [the physician] knows" the Veteran has had to use hearing aids for the past 25 years due to noise exposure from the Korean War. The Board finds that the private physician's statement is of minimal probative value. While the physician does state that the Veteran has current hearing loss, the physician speculates about the etiology of the hearing loss. Furthermore, the physician provides no insight or analysis into other factors that may or may not have contributed to the Veteran's hearing loss such as any post-service noise exposure the Veteran experienced in 37 years as a welder and recreational hunter. Therefore, the Board provides minimal probative weight to the private physician's opinion and finds that the VA examiner's opinion is more persuasive. The Veteran has also submitted a lay statement from a fellow Veteran of the Korean War. E.K. reported that he served in Korea from 1952 to 1954 where he was stationed with an artillery unit. He reported that the amount of noise the artillery produced made it reasonable to assume that the Veteran's hearing loss was as a result of his exposure to artillery firing. The Board assigns little probative value to E.K.'s lay statement. While E.K. is competent to report his own experiences with artillery in Korea and of observed exposure of the Veteran, his statement is absent of any personal knowledge of the Veteran's hearing levels before or during service. Furthermore, E.K. has not shown that he medical knowledge or training that would allow him to provide a medical opinion as to the onset or cause of the Veteran's hearing loss or tinnitus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Finally, E.K.'s statement that "it is reasonable to assume that [the Veteran's] hearing loss" was a result of exposure to artillery is speculative in nature and provides an opinion to a complex medical question that E.K. is not competent to provide. The Board finds that the September 2009 VA examination to be of considerable probative value. Unlike the private physician's opinion, the VA examiner's opinion is supported by adequate reasoning. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The VA examiners opinion is the most probative evidence of record because it is an opinion that was based on a review of the Veteran's claims file and the Veteran's post-service occupational noise exposure. In a November 2011 statement, the Veteran's representative contends that the VA examiner relied on the whisper voice test which is notoriously unreliable and therefore it was improper for the examiner to conclude that there was no indication of in service hearing loss. While whisper voice testing may not be as probative of hearing acuity for VA disability purposes as audiometric testing, that does not mean that the whisper voice test has no probative value. In this particular case, where the whisper test is the only indication of in service hearing levels available in the evidence, it still provides probative value for the VA examiner to factor into the opinion. Moreover, the VA examiner did not solely rely on the absences of reports of in service hearing loss, but also took into consideration the Veteran's post service occupational and recreational noise exposure, and a 30 year length of time between the Veteran's discharge and his first treatment for hearing loss and tinnitus. The Board finds that the evidence is against a finding that the Veteran's hearing loss or tinnitus manifested within one year of separation from active service or had onset during service. Although the Veteran contends that his hearing loss and tinnitus had onset during service and that he has had continuous symptoms since service, the Board finds that as a lay person, he is not competent to report the causes of this hearing loss and tinnitus. In addition, the lack of any treatment of noted complaint of hearing loss or tinnitus for over 30 years following service weighs against the claim. Furthermore, the Board finds that the September 2012 VA examiner's opinion outweighs the Veteran's statements concerning the etiology of his disabilities, the private physician opinion, and the lay statement provided by E.K. In summary, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss and tinnitus had onset during active service or within the applicable presumptive period, or were caused by his active service. His appeal to these issues must therefore be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs