Citation Nr: 1340920	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  12-09 765	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland



THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.



REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1944 to April 1946.  This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In February 2013, a telephone conference was conducted between a Decision Review Officer (DRO) and the Veteran's representative; a written report is of record.

The Board remanded the case for further development in September 2013.  That development was completed, and the case has since been returned to the Board for appellate review.

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record (electronic claims file).  The corresponding Virtual VA file does not contain any additional documents pertinent to the present appeal.

Please note 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.  Bilateral hearing loss did not manifest in service and is not related thereto, nor was sensorineural hearing loss manifest within one year of separation from active service.

2.  Tinnitus did not manifest in service and is not otherwise related thereto.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in service, nor may sensorineural hearing loss be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Tinnitus was not incurred in service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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) (2012).

VA must inform the claimant of any information and medical or lay 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.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, the notice requirements apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  

In this case, the Veteran was provided adequate VCAA notice in a May 2010 pre-rating letter, to include an explanation of the evidence necessary to substantiate the claims for service connection, the division of responsibilities in obtaining such evidence, and an explanation of how disability ratings and effective dates are determined.

The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records (STRs) as well as all identified and available post-service medical records are in the electronic claims file.  The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein.  At the December 2010 VA examination, the Veteran appears to report a history of having his hearing tested privately 6 to 8 years prior and was told he had hearing loss at that time.  The Board finds that a review of the entire claims file indicates that the Veteran was likely referring to his visit to a private medical practitioner 7 months prior (May 2010).  This is because the Veteran has consistently stated that he did not seek treatment for his hearing loss or tinnitus until at least 2010.  Accordingly, these are not available, outstanding records as the private medical opinion is associated with the claims file.  The record also includes written statements provided by the Veteran and his representative, as well as a February 2013 DRO telephone conference report, evidencing an agreement to hold the record open for a 30-day period to allow for submission of a private medical opinion once received from the Veteran.  In addition, the Appeals Management Center (AMC) sent a September 2013 letter to the Veteran requesting that he provide any additional information to support his claim, to include the private medical opinion, in accordance with the September 2013 remand instructions.  On review, the Veteran did not submit any additional information to support his claim prior to post-remand readjudication of the case.

The Board notes that the Veteran's copy of the September 2013 remand was returned for reasons unclear in the record.  Nevertheless, the record shows that the Board remand was sent to the Veteran's address of record and was also sent to and received by his representative, as reflected in the November 2013 representative's written brief acknowledging the order.  Additionally, a letter requesting that the Veteran send to VA a previously referenced private medical opinion was sent around the same time.  That letter was not returned.  Furthermore, the record shows that the AMC sent the November 2013 supplemental statement of the case (SSOC) to the same address and it was not returned.  The SSOC discussed the development undertaken by the AMC consistent with the remand order.  As such, the Veteran is presumed to have received these mailings.  See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity applies to VA mailings).  To the extent a question remains about whether the Veteran had an opportunity to fully participate in the development of his case, the Board finds that these additional mailings from the AMC provided him notice of the outstanding information necessary to substantiate his claim and afforded him the opportunity to participate in any development in this regard.  In summary, the Board finds that any related notice error is not prejudicial to the Veteran and does not prevent adjudication of these claims at this time.

The Veteran was also afforded a VA examination in December 2010 in connection with his claims.  Thereafter, VA addendum opinions were obtained in July 2011 and October 2013 from the same VA examiner.  The Board finds that the VA examination report and October 2013 opinion, when taken together, are adequate to decide the case, as the opinion is predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran.  The examiner provided a complete rationale for the opinion stated, relying on a citing to the records reviewed.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Based on the foregoing, the Board finds that VA has complied with the VCAA notification and assistance requirements; all necessary development has been accomplished, and there is no error or issue that precludes the Board from addressing the merits of this appeal.

Law and Analysis

As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend, that he engaged in combat with the enemy.  Again, the September 2013 remand letter afforded the Veteran another opportunity to provide any additional information to support his claim; however, he has not submitted such information to date.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this case.

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 (West 2002); 38 C.F.R. § 3.303(a) (2012).  There must be:  (1) 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 - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  The provisions relating to continuity of symptomatology, however, can be applied only in cases involving those conditions enumerated under 38 C.F.R. § 3.309(a) as a chronic disease.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In this case, these provisions are applicable to sensorineural hearing loss (organic disease of the nervous system), considered to be a chronic disease for VA compensation purposes, but not tinnitus.  

For Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  Impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz 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.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

First, there are current disabilities as the 2010 VA examination diagnosed bilateral sensorineural hearing loss and tinnitus.  See 38 C.F.R. § 3.385.  Second, there is an in-service event as the Veteran has provided competent testimony regarding his in-service noise exposure.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  Additionally, the Board finds the testimony credible as it is consistent with his service - the Veteran's DD 214 indicates that he completed gunner's mate school and held various ratings, to include as a gunner's mate, as reported.  See 38 U.S.C.A. § 1154(a).  Thus, the remaining question is whether the Veteran's bilateral hearing loss and tinnitus are related to his in-service noise exposure.  In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for bilateral hearing loss and tinnitus.

The Veteran contends that his current bilateral hearing loss and tinnitus are due to noise exposure during his military service while performing his duties as a gunner's mate.  In various documents, he reports that he has experienced difficulty with hearing loss and tinnitus for some time, but did not address the issues in the past.  He indicates he's had ringing in ears for as long as he can remember and that he had hearing trouble for years but just never did anything about it. In the April 2010 claim, the Veteran reported current hearing loss and tinnitus but left the portion of the form for the beginning date of the disorders and treatment blank; he could not recall whether he was provided with a service separation examination.  In a November 2010 written statement, the Veteran's representative indicated that there was no "set time that these disabilities appear[ed] to the Vet."

The Veteran's STRs include an August 1944 entrance examination where his ears were found normal on physical examination, and hearing was measured as 15/15 in each ear.  The remainder of the STRs do not show any complaints, treatment, or diagnosis related to the ears.  During the April 1946 separation examination, it was noted that there were no diseases or defects of the ears, and hearing was measured at 20/20 on coin click testing and 15/15 on whispered voice testing.

The post-service medical evidence reflects that the Veteran established care with VA in September 2009 for treatment of various medical conditions.  However, as reported by the Veteran in his written submissions, he did not receive treatment for hearing loss or tinnitus.  

In a May 2010 written submission, a private medical practitioner stated that the Veteran had been assessed that day and suffered from tinnitus and hearing loss, highly likely from years of service in the Navy.

The Veteran was afforded a VA examination in December 2010 during which he reported noticing hearing loss about 25 years prior and tinnitus over 20 years prior with no known associated cause.  He reported in-service noise exposure as a gunner's mate, to include from weapon fire, without hearing protection.  He also reported occupational noise exposure from working as a carpenter from 1946 to 1983 and recreational noise exposure from woodworking. On audiological evaluation, puretone thresholds in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
50
90
85
LEFT
40
55
60
75
75

The examiner stated that it was at least as likely as not that the Veteran's bilateral hearing loss was related to his post-service occupational and/or recreational noise exposure, and that it was at least as likely as not that his tinnitus was related to these factors and/or hearing loss.  In so finding, the examiner considered the Veteran's reported history of onset of hearing loss/tinnitus difficulty (20-25 years ago) and 37 years of post-service occupational and recreational noise exposure after his service duties as a gunner's mate. 

In a July 2011 addendum opinion following review of the claims file, the VA examiner indicated that the opinion remained unchanged, noting no evidence of hearing loss or tinnitus during service, as well as consideration of normal entrance and separation examination testing.  In a October 2013 VA addendum opinion, the VA examiner again reviewed the claims file and determined that it was less likely than not that the hearing loss and tinnitus were incurred in or caused by the in-service noise exposure.  In so finding, the examiner noted the normal hearing tests at service entrance and separation and no ear defects noted at discharge.  The examiner also noted that while it is known that the tests performed in service are not frequency-specific tests of hearing, other evidence was also considered in forming the opinion.  Specifically, the examiner acknowledged the Veteran's competent report of noise exposure during service, the Veteran's competent report of the onset of hearing and tinnitus problems over 35 years after service discharge, the Veteran's competent reports of post-service noise exposure history as a carpenter/woodworker around power tools and saws beginning shortly after service, and the configuration of the audiological evaluation results.  The examiner also indicated that tinnitus due to noise exposure typically has its onset immediately or shortly after the traumatic event, citing medical literature providing that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely, and that the Veteran's audiological evaluation results were consistent with presbycusis (age-related hearing loss).

In this case, the record shows that the Veteran did not develop a chronic hearing loss disability or manifestations sufficient to identify the disease entity in service.  The first notation of hearing loss of record is the May 2010 private medical opinion.  The first diagnosis of hearing loss for VA purposes was at the December 2010 VA examination.  Both were many years after service.  Therefore, chronicity is not established in service as to sensorineural hearing loss.  In addition, the record contains no indication that sensorineural hearing loss manifested to a compensable degree within one year of his military service.  Notably, the Veteran's STRs are silent regarding hearing loss and tinnitus.

The absence of in-service evidence of hearing loss and/or tinnitus is not fatal to the Veteran's claims.  38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, competent evidence of a current disability 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.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Likewise, service connection may be granted for tinnitus diagnosed post-service upon the showing of a link between the current disorder and in-service noise exposure.  In this case, however, the weight of the evidence of record does not link current hearing loss or tinnitus to the Veteran's active service.

The 2010 positive private medical opinion is assigned no probative value or weight because it contains no supporting rationale and does not appear to account for post-service noise exposure.  See Nieves-Rodriguez, 22 Vet. App. at 304 (noting that most of the probative value of a medical opinion comes from its reasoning); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (noting that an opinion based on an inaccurate factual premise has limited, if any, probative value).

The 2010 VA opinion, however, is assigned significant probative value and weight.  The VA examiner gave a negative nexus opinion upon a review of the claims file and provided supporting explanation, including the configuration of the hearing loss, the in-service and post-service noise exposure, normal hearing results at discharge, and the Veteran's competent reports of onset of hearing loss and tinnitus.  See Nieves-Rodriguez, 22 Vet. App. at 304; Reonal, 5 Vet. App. at 460-61.

The Board does not assign any probative value or weight to the Veteran's opinion that his current bilateral hearing loss and tinnitus are related to in-service noise exposure.  The Veteran is not competent to provide such an opinion in this case; the etiology of hearing loss and tinnitus service is a complex medical matter not capable of lay observation, as opposed to a broken leg and the presence of onset of varicose veins or ringing in the ears.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that a claimant is competent to identify a broken leg, but not a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation).

The Veteran is competent to report as to the observable symptoms he experiences, such as hearing difficulty and ringing in the ears, and their onset and history.  See Layno, 6 Vet. App. 465.  The Board also finds this Veteran credible.  But the Veteran does not contend that his hearing loss or tinnitus was present at separation; regardless, the Board finds that the VA examiner's opinion outweighs the Veteran's assertions as it is based upon a review of all the relevant evidence of record and provided by a medical professional.   

Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claims.  As such, the benefit-of-the-doubt rule does not apply, and the claims are denied.  Gilbert, 1 Vet. App. 49, 53.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.



____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs