Citation Nr: 1341007	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  11-08 836	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


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


ATTORNEY FOR THE BOARD

G. Wasik, Counsel



INTRODUCTION

The Veteran had active duty service from November 1969 to October 1971.  
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in Lincoln, Nebraska.  

The Veteran requested to attend a hearing in support of his claim in November 2011.  In December 2011, the Veteran informed a VA employee that he no longer desired to attend a hearing.  

The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran does not hearing loss for VA purposes in his right ear.

2.  The Veteran's left ear hearing loss is not related to his active military service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by active military service nor is it secondary to a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.385 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

With respect to the Veteran's claim of service connection for bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). 

Proper notice from VA must inform the veteran 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 veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO's July 2010 and April 2011 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was notified of the information and evidence necessary to substantiate the claim of entitlement to service connection for hearing loss and of the general criteria for assigning disability ratings and effective dates.  The Veteran was also provided with information on how to substantiate a claim for secondary service connection.  The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of this claim, including the opportunity to present pertinent evidence. 

The duty to assist the Veteran has been satisfied for this claim.  The RO has obtained the Veteran's available service treatment records and his identified VA treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran has also been afforded a VA examination that is adequate to decide the bilateral hearing loss claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Specifically, the examiner who conducted the January 2010 and May 2011 VA examinations reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for a fully-informed medical opinion regarding this claimed disability.  Id.   

As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim of entitlement to service connection for hearing loss, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").

II. Analysis

Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App.439, 448 (1995). 

Service connection for certain chronic diseases, including sensorineural hearing loss, will be presumed if they are manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In addition to the general service connection provisions, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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.

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another.  Evans v. West, 12 Vet. App. 22, 31 (1998).  

The Veteran contends that he has hearing loss as a result of acoustic trauma he was exposed to while participating in combat during active duty.  The Veteran was awarded the Combat Infantryman Badge so his exposure to acoustic trauma during active duty is conceded.  In the alternative, the Veteran claims that he has hearing loss as a result of medication he takes for his service-connected ischemic heart disease.  

At the time of the Veteran's entrance examination, which was conducted in August 1969, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
-5
-5
Not reported
-5
LEFT
-5
-5
-5
Not reported
0

No pertinent abnormalities were noted or diagnosed.  

The service treatment records were silent as to complaints of, diagnosis of or treatment for hearing loss.  Whispered voice testing conducted at the time of the Veteran's separation examination in October 1971 was 15/15.  No pertinent abnormalities were noted or diagnosed.  

On his original application for compensation which was received in July 2010, the Veteran reported that his bilateral hearing loss began January 1, 1971.  

At the time of an August 2010 VA audiological examination, the Veteran reported that he noticed a gradual change in his hearing approximately ten to fifteen years prior.  He worked in an office with a lot of telephone work, a history of copier noise exposure and computer work.  He hunted once per year.  He had military noise exposure as an infantry squad leader 39 years prior.  Testing demonstrated that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
15
30
LEFT
15
10
20
25
50

Speech audiometry revealed speech recognition ability of 98 percent for both ears.  The examiner determined that the Veteran's hearing was normal for VA purposes in the right ear and was consistent with changes in hearing likely to occur due to the natural aging process.  The examiner found that the Veteran had mild hearing loss in the left ear which was also consistent with changes in hearing likely to occur as a result of presbycusis or the natural aging process.  The rationale was that the Veteran reported his hearing loss was of a gradual onset over the past ten to fifteen years.  The examiner found no evidence that the hearing loss was the result of or aggravated by the Veteran's military service.  Studies such as those conducted by the Institute of Medicine Report  were cited as demonstrating that noise induced hearing loss occurs immediately.  The examiner found that there was no scientific support for the onset of noise induced hearing loss weeks, months or years after exposure.  

In support of his claim, the Veteran submitted a copy of a treatise on presbycusis.  

In a January 2011 addendum to the August 2010 examination report, the examiner noted the Veteran's assertions that he shot guns with his left hand which would account for the greater hearing loss on the left.  The examiner cited to studies which found that left handed shooters tend to have greater hearing loss on the right due to the "head shadow effect."  The examiner found that the Veteran's allegation that his hearing loss on the left was caused by military service when shooting guns on the left is not supported by audiological science.  The examiner again cited to studies which demonstrated that noise induced hearing loss related to military noise exposure occurs immediately and does not have a delayed onset of weeks, months or years after exposure to the event.  The examiner opined that the Veteran's hearing loss was most likely due to factors other than military service such as presbycusis.  

The most recent VA examination of the Veteran's hearing for compensation and pension purposes was conducted in May 2011.  The Veteran denied any change in his hearing since the 2010 examination.  He reported a medical history of mumps, measles, scarlet fever and influenza.  He denied a history of family hearing loss.  He had military noise exposure from helicopters and firing weapons.  He denied any civilian noise exposure except for infrequent hunting without hearing protection.  The Veteran was taking Lisinopril for hypertension and claimed that the medication caused his hearing loss.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
15
30
LEFT
15
10
15
20
55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.  The examiner opined that the configuration of the hearing changes were most consistent with presbycusis.  As the Veteran noted a gradual onset of hearing changes over many ears which is the pattern most commonly associated with presbycusis the Veteran opined it is less than likely that the current hearing loss is caused by, a result of or aggravated by the Veteran's active military service.  Studies such as the Institute of Medicine Report (2005) on hearing loss and military noise exposure have shown that noise induced hearing loss occurs immediately and does not have its onset weeks, months or years after the exposure event.  The Beaver Dam Study on hearing loss amongst Veteran's and non-Veteran's was cited as showing no differences in hearing loss between the two groups.  The examiner opined these findings support that the Veteran's hearing was most likely related to the natural aging process.  The examiner found there was no empiric evidence to support a finding that hearing loss in the left ear is worse due to any of his blood pressure medications.  The examiner opined the left ear hearing loss is most likely a normal variation in hearing acuity in both ears.  Hearing loss was not listed in the Physician's Desk Reference as being linked to Lisinopril.  

In June 2011, the audiologist prepared an addendum to the June 2011 examination report.  It was noted that the Veteran alleged his hearing loss was due to low dosage aspirin therapy the Veteran used.  The examiner noted, however, that the Veteran's claimed hearing loss was present prior to starting the low dose therapy.  The examiner found that it was less than likely that the present hearing loss was caused by, a result of or aggravated by aspirin therapy.  

Direct, presumptive, and secondary service connection is not warranted for right ear hearing loss as there is no competent evidence of record of the presence of right ear hearing loss for VA purposes at any time during the pendency of the appeal.  The audiometric test results set out above fail to document that the right ear hearing loss in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  While the Veteran is competent to report he experiences right ear hearing loss, he is not competent to report on the extent of the hearing loss disability as such determination requires specialized audiological testing.  In the absence of evidence of current disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As to whether service connection is warranted for left ear hearing loss, the evidence does not show that the Veteran had chronic sensorineural hearing loss for VA purposes during service.  The service treatment records were silent as to complaints of, diagnosis of or treatment for hearing loss.  However, the lack of the presence of hearing loss during active duty is not fatal to the claim.  

The Board finds that service connection is not warranted for left ear hearing loss on a presumptive basis.  There is no competent evidence of the presence of hearing loss for VA purposes within one year of discharge.  The hearing evaluation conducted at the time of discharge (whispered voice testing) is insufficient to document hearing loss for VA purposes and there were no audiological evaluations conducted within one year of discharge.  To the extent that the Veteran alleges that he had hearing loss for VA purposes within one year of discharge, the Board finds that such an allegation is without probative value.  While the Veteran is competent to report that he experienced a loss of hearing acuity, specialized testing is required to determine the extent of that loss.  Significantly, the evidence of record indicates the Veteran has reported on several different occasions that he first noticed hearing loss years after his discharge.  This statement adds further weight against a finding that the Veteran had hearing loss to a compensable degree within one year of discharge.  

The Board finds that service connection is not warranted for left ear hearing loss on a direct basis as the preponderance of the competent evidence of record demonstrates that the Veteran's current left ear hearing loss is due to factors other than his military service.  The audiologist who conducted the VA examinations consistently found that the left ear hearing loss was not due to active duty but due to the natural aging process.  The audiologist supported her opinion by citations to medical studies which indicate that hearing loss due to acoustic trauma occurs immediately, noting that hearing loss was not present during active duty and by noting the Veteran's self-reported history of hearing loss beginning many years after discharge.  The Board finds that the audiologist opinion as to the etiology of the left ear hearing loss is to be afforded great probative value.  The examiner is a medical expert and provided a competent medical opinion with the essential rationale for the opinion. The evidence regarding nexus weighs against the claim.

The only evidence which indicates that the Veteran's left ear hearing loss is due to his active duty service is the Veteran's own allegations.  While the Veteran is competent to report on the presence of hearing loss, he is not competent to provided a medical opinion as to the etiology of the hearing loss as this is not a simple medical determination or one which is capable of being made through the Veteran's senses.  The Board finds that no probative value attaches to the Veteran's opinion regarding the etiology of his left ear hearing loss.  No health care professional is on record as opining that the current left ear hearing loss is etiologically linked to the Veteran's active duty service.  

The Board notes that a showing of a continuity of symptomatology after service for a condition noted during service, but which is not then shown to be chronic, is an avenue to establish service connection.  See 38 C.F.R. § 3.303(b).  This theory of entitlement applies only to those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).  Because sensorineural hearing loss is treated as "other organic diseases of the nervous system" under 38 C.F.R. § 3.309(a), this theory of entitlement potentially applies to the Veteran's case.

Here, the Board does not find that the evidence supports a finding of a continuity of symptomatology.  The service treatment records are silent as to hearing loss.  The Board takes the Veteran's statements as credible concerning his in-service experiences regarding noise exposure.  He is competent to testify to which he has actually observed and is within the realm of his personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  Moreover, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

Even so, continuity of symptomatology is not shown as the Veteran has indicated that his hearing loss began many years after his discharge.  Furthermore, the earliest post-service evidence of hearing loss was the August 2010 VA examination which is almost 40 years after service.  This is at least a factor weighing against a continuity of symptomatology.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).  Given this evidence, a continuity of symptomatology of left ear sensorineural hearing loss has not been shown, at least not until many years after service.  Therefore, service connection is not warranted under this theory of entitlement.

The Veteran has claimed that his hearing loss is due to his hypertension medication and/or aspirin he takes for his service-connected disability.  Service connection for left ear hearing loss is not warranted on a secondary basis as there is no competent evidence of linking the left ear hearing loss to medications the Veteran takes.  The only evidence of record which indicates there is such a link between the Veteran's medication and hearing loss is the Veteran's own allegations.  As set out above, the Veteran is not competent to provide an opinion as to the etiology of his hearing loss.  There is competent evidence which weighs against this claim.  The VA examiner noted the Veteran's theory of etiology regarding his medications but found that this was not the etiology of the hearing loss as the Veteran's hearing loss began prior to his use of the medications.  The Board finds the competent probative evidence of record demonstrates that the Veteran's hearing loss is not secondary to medications of his service-connected disability.  

The Veteran submitted a treatise on presbycusis.  This treatise evidence does not reference the specific facts of this particular case, so is less probative than the VA examiner's unfavorable opinion.  Where medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus.  See Wallin v. West, 11 Vet. App. 509 (1998).  However, an attempt to establish a medical nexus between service and a disease or an injury solely by generic information in a medical journal or treatise "is too general and inclusive."  Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element).  Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility").  But, here, there is not this required supporting medical comment from any doctor and the VA examiner who addressed this evidence and found it not to be probative in the Veteran's case.  The Board attaches little probative value to the treatise.  

Accordingly, service connection for left ear hearing loss is not warranted as the most probative evidence shows that the Veteran's current hearing loss is not related to his military service, to include as due to noise exposure and it is not secondary to any medications the Veteran is taking for a service-connected disability.  

In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss, the doctrine is not for application.  See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 


ORDER

Service connection for bilateral hearing loss is denied.  


REMAND

The Veteran also contends that service connection is warranted for tinnitus as a result of his exposure to loud noise during service.  The examiner who conducted the VA examinations in August 2010, January 2011 and May 2011 addressed this claim.  The examiner noted that the Veteran reported the onset of his tinnitus was during active duty but then wrote that there is no evidence to support onset of tinnitus during the Veteran's active duty military service.  

The VA examiner's opinion as to tinnitus is not wholly adequate as it does not take into account the Veteran's report of tinnitus beginning while on active duty.  There is evidence to support onset of the disorder during active duty - the Veteran's statements that tinnitus began during active duty which he is competent to make.  The presence of tinnitus is capable of lay observation as it is readily identifiable by its features.  Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  Accordingly, the Board finds it necessary to remand this claim for another etiological opinion that takes into account the Veteran's reports of tinnitus being present during active duty.

Accordingly, the case is REMANDED for the following action:

1.  Forward the claims file to the VA audiologist who conducted the May 2011 VA audiological examination.  The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been re-reviewed.  The examiner must specify the dates encompassed by the Virtual VA records that were reviewed.  The examiner must be informed that the Veteran is competent to report that he experienced tinnitus which began during active duty.  Based on a review of the evidence of record to include the Veteran's report of tinnitus while on active duty, the examiner must state whether any tinnitus that the Veteran has had during the pendency of the claim is related to his active duty service.  A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report prepared must be typed.

The RO must schedule another examination if the May 2011 VA examiner is not available or if an examination is necessary to answer the question posed above.

2.  Finally, after undertaking any other development deemed appropriate, the RO must re-adjudicate the issue of entitlement to service connection for tinnitus.  If the benefit sought is not granted, the RO must furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.


No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369   (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs