Citation Nr: 1341079 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-41 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from January 1969 to February 1972. This case is before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The case was remanded by the Board in February 2013 for a videoconference hearing. A videoconference hearing with the Veteran was conducted by the undersigned Veterans Law Judge (VLJ) in May 2013, and a transcript of the hearing is of record. Consequently, there has been substantial compliance with the February 2013 Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Veteran also provided testimony at a June 2010 Decision Review Officer (DRO) hearing at the RO, and a transcript of the hearing is of record. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's bilateral sensorineural hearing loss is causally related to service, that he had hearing loss to a compensable degree within one year of service, or that he experienced hearing loss continually since service. 2. The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's tinnitus is causally related to service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for bilateral sensorineural hearing loss are not met as the disorder was not incurred in or aggravated by active duty; nor may sensorineural hearing loss be presumed to have been so incurred or aggravated. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in December 2009, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the December 2009 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. An audiological evaluation with nexus opinion was obtained by VA in December 2009, and an additional VA nexus opinion was obtained in July 2010. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the December 2009 and July 2010 reports obtained in this case are adequate, as they include a recent audiological evaluation and include nexus opinions based on a reading of relevant medical records in the Veteran's claims file. The evaluators considered all of the pertinent evidence of record and provided a rationale for the nexus opinions on file. There is adequate medical evidence of record to make a determination on the service connection issues in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the service connection issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his June 2010 RO hearing and his May 2013 videoconference hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). The provisions of 38 C.F.R. § 3.103(c)(2) (2013) require that the DRO who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) also requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill the same duties to comply with the above regulation. Here, during the DRO hearing, the Veteran was assisted at the hearing by an accredited representative from Paralyzed Veterans of America (PVA). The representative and the DRO asked questions to ascertain to ascertain the onset of symptoms, duration of symptoms, any nexus between current disability and service, and the existence of any pertinent outstanding evidence. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). At the May 2013 videoconference hearing, the PVA and the VLJ asked the Veteran questions about the bases for the service connection issues on appeal. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. The VLJ asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between current disability and service. The VLJ and the Veteran's representative also solicited information to identify any outstanding relevant evidence. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claims The Veteran seeks service connection for bilateral sensorineural hearing loss and for tinnitus as a result of service exposure to acoustic trauma. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (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 C.F.R. § 3.303(d) (2013). In the case of sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). 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. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As is noted above, the Board is required to follow applicable statutes and regulations in its decisions. Applicable regulations provide that 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). Before proceeding, the Board observes that prior to November 1, 1967, audiometric tests for hearing by a service department were reported by a standard set by the American Standards Association (ASA). Since November 1, 1967, the standard for audiometric testing for hearing has been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The ISO-ANSI standard is the current method for measuring hearing loss and used by VA to determine a hearing loss disability under 38 C.F.R. § 3.385. In order to facilitate data comparison, test results before November 1967 under the ASA standard should be converted to the ISO-ANSI standard. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records do not contain any complaints of hearing loss or tinnitus. On enlistment audiological evaluation in December 1968, the audiometric findings were designated as ASA units. When converted to ISO units, the Veteran had pure tone thresholds at the relevant frequencies in the right ear of 10 decibels at 500 hertz, 0 decibels at 1000 hertz, 0 decibels at 2000 hertz, 15 decibels at 3000 hertz, and -5 decibels at 4000 hertz. Pure tone thresholds at the relevant frequencies in the left ear were 10 decibels at 500 hertz, 5 decibels at 1000 hertz, 0 decibels at 2000 hertz, 5 decibels at 3000 hertz, and 5 decibels at 4000 hertz. On separation audiological evaluation in February 1972, pure tone thresholds at the relevant frequencies in the right ear were 15 decibels at 500 hertz, 5 decibels at 1000 hertz, 0 decibels at 2000 hertz, and 0 decibels at 4000 hertz. Pure tone thresholds at the relevant frequencies in the left ear were 10 decibels at 500 hertz, 5 decibels at 1000 hertz, 0 decibels at 2000 hertz, and 15 decibels at 4000 hertz. No results were reported at 3000 hertz. According to a March 2001 VA treatment report involving a general medical review, the Veteran did not have earaches, drainage, hearing loss, or tinnitus. The Veteran noted on a November 2009 Tinnitus Questionnaire that his tinnitus began in the service as a result of exposure to acoustic trauma from turbine engines, a helicopter explosion, and small arms fire. The Veteran complained on VA audiological evaluation in December 2009 of decreased hearing noticed approximately 20 years earlier and ringing in his ears that began approximately 10-15 years earlier. Pure tone thresholds at the relevant frequencies in the right ear were 10 decibels at 500 hertz, 10 decibels at 1000 hertz, 45 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 60 decibels at 4000 hertz; pure tone thresholds at the relevant frequencies in the left ear were 10 decibels at 500 hertz, 15 decibels at 1000 hertz, 40 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 50 decibels at 4000 hertz. Bilateral moderately severe sensorineural hearing loss and tinnitus were diagnosed. The examiner concluded that the Veteran's hearing loss and tinnitus were most likely not related to service noise exposure because he had a normal exit examination and because the Veteran reported that he first noticed hearing loss and tinnitus at least 10 years after service discharge. The Veteran testified at a personal hearing at the RO in June 2010 that he was exposed to acoustic trauma in service during his job as a turbine engine repairman without much ear protection and while firing an M60 as a door gunner, that he sometimes could not hear after coming off of the flight line, that he noticed interference with his hearing approximately 15-20 years ago, and that his most significant noise exposure was in service. An additional VA nexus opinion was obtained in July 2010. After review of the record, the audiologist concluded that it was not at least as likely as not that the Veteran's current hearing loss and tinnitus are the result of service noise exposure because of the audiological findings on enlistment and separation evaluations. The audiologist noted that exposure to acoustic trauma can cause a temporary or permanent threshold shift in the audiogram, which disappears in 16-48 hours after exposure to loud noise. It was stated that, as there was a normal audiogram at service separation, which is after the service noise exposure, there was no evidence of a permanent threshold shift indicative of hearing loss. Also added to the record in July 2010 are color photographs of the Veteran while he was stationed in Vietnam, to include helicopter gunships and turbine engines. According to a lay statement from M.H., a member of the Veteran's helicopter assault unit, which was added to the record in September 2011, the Veteran's unit did not receive ear protection until the spring or summer of 1970; M.H. noted that "all of us suffered hearing loss." A February 2012 audiological report from The Hearing Clinic contains the diagnoses of bilateral sensorineural hearing loss and tinnitus. It was noted that the Veteran complained of tinnitus since 1969 and exposure to acoustic trauma in service from machine guns, tanks, tank guns, and turbine engines without significant noise exposure since service. After examination of the Veteran and review of his DD 214 and some permanent medical records, it was concluded that it was quite likely that noise exposure in service was the beginning of the Veteran's hearing loss and tinnitus because the type and degree of his hearing level was consistent with noise-induced hearing loss. The Veteran testified at his videoconference hearing in May 2013 that his audiograms at entrance and separation do not "match up" and that he noticed hearing loss and tinnitus in service. There is evidence on file both for and against the Veteran's claims for service connection for bilateral sensorineural hearing loss and tinnitus. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds the December 2009 and July 2010 nexus opinions against the claims to be of more probative value, when considered along with the other evidence of record, than the February 2012 private opinion in favor of the claims. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). There were no complaints or clinical findings indicative of hearing loss or tinnitus in service, including on the Veteran's February 1972 separation medical history and audiological examination reports. Additionally, the Veteran indicated on a general evaluation in March 2001 that he did not have hearing loss or tinnitus. The initial post-service medical evidence of hearing loss was not until 2009, which is many years after service discharge. When examined in December 2009, the Veteran reported that he did not notice hearing loss or tinnitus until at least 10 years after service separation. Although there is a December 2012 private audiological report in favor of the claims, this audiologist, unlike the VA audiologists, does not appear to have reviewed all of relevant medical evidence, as he does not refer to the Veteran's service treatment records. The audiological evaluations obtained for VA purposes in December 2009 and July 2010 appear to be based on a review of the service treatment records, as they both refer to these records, and each opinion contains a supporting rationale. Due consideration has been given to the Veteran's statements in support of his claims, as well as to the statement from M.H. Although the Veteran and M.H. are competent to report symptoms of hearing loss and tinnitus, neither is competent to opine that the Veteran currently has hearing loss and/or tinnitus due to service. The Board does not find the Veteran's recent contentions that he has had hearing loss and tinnitus since service credible because he indicated that he did not have hearing loss or tinnitus on separation examination in February 1972 and when evaluated by VA in March 2001; and he noted at his June 2010 RO hearing and on audiological evaluation in December 2009 that he did not notice hearing loss or tinnitus until at least 10 years after service discharge. Although he testified in June 2010 that he sometimes could not hear when he came off of the flight line, he also testified that he initially noticed hearing loss 15-20 years after discharge, which indicates that the hearing loss when coming off of the flight line was temporary. Although it has been contended by and on behalf of the Veteran that his hearing was worse on service separation audiogram than on service enlistment audiogram, these audiogram results were considered by the VA examiners. The Board does not dispute that the Veteran was exposed to acoustic trauma in service; however, the evidence as a whole, as discussed above, does not show bilateral hearing loss and/or tinnitus due to service. Consequently, service connection for bilateral sensorineural hearing loss and tinnitus is denied. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's service connection claims, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral sensorineural hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs