Citation Nr: 1341589 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 12-02 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for headaches. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from December 1983 to April 1984 and from March 1986 to May 1986. He served as a member of the Naval and Army reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Bilateral hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, nor is bilateral hearing loss otherwise related to such service. 2. Tinnitus was not manifested during the Veteran's active duty service or for many years thereafter, nor is tinnitus otherwise related to such service. 3. Headaches were not manifested during the Veteran's active duty service or for many years thereafter, nor are headaches otherwise related to such service or proximately due to or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 3. Headaches were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in May 2010 (for hearing loss), November 2010 (for hearing loss and tinnitus) and December 2010. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See 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.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and private treatment records, assisted the Veteran in obtaining evidence, reviewed Virtual VA and VBMS files, and afforded the Veteran VA audiological examinations in November 2010 and February 2012 to address his hearing loss and tinnitus claims. While the Veteran has not been afforded a VA examination for his headaches, there is no need for additional development to obtain such examination as there is no evidence of headaches in service and the Veteran does not assert experiencing such symptoms at the time. Further, given that service connection is denied, below, for hearing loss and tinnitus, no examination is required to satisfy the duty to assist based on the claim for secondary service connection as there is no underlying service-connected audiological disability upon which to base such a claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When the requirements for a chronic disease under 38 C.F.R. § 3.309(a), which include organic diseases of the nervous system such as sensorineural hearing loss, are shown in service (or within the presumptive period under 38 C.F.R. § 3.307), then all subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Walker v. Shinseki, 708 F. 3d 1331, 1335 (2013). If evidence of a chronic conditions is noted during service or during the presumptive period, but chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation of the chronic disease. Id. at 1336. To be "shown in service," the disease identity must be established and the diagnosis not be subject to legitimate question. Id. at 1335. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). I. Hearing Loss Sensorineural hearing loss (organic disease of the nervous system) may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability 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. The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). In a statement received in May 2010, the Veteran asserted that his hearing loss is due to noise exposure serving in an artillery unit in the Army. His DD 214 from that period of service shows that his military occupational specialty was that of a cannon crewman. The Board notes that service connection on a direct basis is not warranted. During his first period of service in the Naval Reserves, service treatment record are silent for any complaints, treatments or diagnosis of hearing loss. On entrance examination in January 1983, clinical evaluation of the ears was normal and no hearing loss was noted. On the authorized audiological evaluation in January 1983, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 0 0 LEFT 0 0 0 0 0 In his contemporaneous medical history, the Veteran denied ear trouble and hearing loss. On the authorized audiological evaluation in December 1983, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 0 0 LEFT 0 0 0 0 0 On a January 1984 report of medical examination, clinical evaluation of the ears was normal. On the authorized audiological evaluation in January 1984, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 0 0 LEFT 0 0 0 0 0 In his contemporaneous medical history, the Veteran denied a past/current history of ear trouble and hearing loss. In between his active periods of service, an August 1985 report of medical history shows that he again denied ear trouble and hearing loss. An August 1985 report of medical examination shows that clinical evaluation of the ears was normal. On the authorized audiological evaluation in August 1985, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 10 LEFT 5 5 0 5 0 Records from the Army reserves show that on the authorized audiological evaluation in January 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 5 0 5 5 5 In a post active service January 1991 report of medical history, the Veteran denied ear trouble and hearing loss. The Board notes that the Veteran does not claim that he had hearing loss in service, but rather post service. On a claim received in February 2010, the Veteran reported that his hearing loss began in December 2009. The Veteran was afforded a VA examination in November 2010. On the authorized audiological evaluation in November 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 25 25 LEFT 25 25 25 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The examiner noted that the Veteran's hearing loss was not clinically disabling per 38 C.F.R. § 3.385 and noted that his hearing was clinically normal. The examiner noted the Veteran's report of hearing loss that began 12 to 18 months prior. After interviewing and examining the Veteran, and after reviewing the claims file, the examiner opined that the Veteran's hearing loss is not caused by or a result of acoustic trauma in service. She noted that puretone thresholds for the right ear do not meet the criteria for disability under VA regulations. In support of his claim, the Veteran submitted a December 2010 letter from Adolph B. Meyer, M.D. who noted the Veteran's report of exposure to "very loud noises" serving in artillery and that "over the years this caused a [sic] hearing loss with ringing in his ears." Dr. Meyer further noted that Veteran's reports of seeing "many otolaryngologist who have also concurred, but he does not remember who they were." The Board notes that a lay person's account of what a doctor purportedly said is too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Veteran also submitted a September 2011 private treatment record from Sanjay Kantu, M.D., who diagnosed bilateral moderate sensorineural hearing loss. He stated that "Hearing loss and tinnitus is [sic] consistent with noise damage during military. . . . At least as likely as not that this is due to such exposure." The Veteran was afforded another VA examination in February 2012. On the authorized audiological evaluation in February 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 30 30 LEFT 30 30 25 35 40 Speech audiometry revealed speech recognition ability of 88 percent bilaterally. After interviewing and examining the Veteran, and after reviewing the claims file, the examiner diagnosed sensorineural hearing loss bilaterally. She opined that it is less likely as not that the Veteran's hearing loss was caused by or a result of an in-service event. She acknowledged that he was in artillery and his report of being required "to actively fire guns monthly" in the Army reserves. Gunfire consisted of "105 and the 155's." The examiner cited to in-service examinations showing normal hearing bilaterally with no significant threshold shifts noted from 1983 to 1991. She further noted that there were no complaints reflected in service records and that the Veteran reported the onset to a "a few years ago" which the examiner noted was "some 19 years post discharge from the service". She referenced November 2010 results showing borderline normal hearing with a mild dip at 6000 to 8000 Hz bilaterally; and Dr. Kantu's September 2011 treatment report with an audiogram that revealed bilateral mild/moderate flat sensorineural bilaterally. She found that the configuration of the Veteran's hearing loss is not consistent with acoustic trauma and suggested the possibility that the fluctuating hearing loss, complaints of dull ear pain and an insensitivity to loud sounds is due to some other on-going ear condition. She noted that an opinion from VA ENT (ear, nose, and throat) would likely be more helpful in explaining why the progression of hearing loss and if the Veteran's current otology complaints are related to past ENT treatment/intervention. She noted the Veteran's hypertension and hypercholesterolemia for which he took medication. The Board acknowledges the Veteran's assertion that his hearing loss is related to noise exposure from working in artillery during Army reserve service. The Veteran stated that he had perfect hearing prior to entering service and has asserted in substantive appeal received in January 2012 no noise exposure prior to and after service. While the Veteran is competent to report the types of symptoms he has experienced, he is not competent to render a medical nexus opinion. See Barr, 21 Vet. App. 303. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, whether the Veteran has a hearing loss disability which is due to service, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377. Nothing in the record demonstrates that the Veteran has received any special training or acquired any medical expertise in evaluating audiological conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Overall, the Board assigns more probative weight to the most current VA examination than it does the private medical opinions from Dr. Meyer and Dr. Kantu. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Unlike the private physicians, the VA examiner not only considered the Veteran's reports of in-service noise exposure, but also discussed in-service findings and the post-service nature of the Veteran's hearing loss. The VA examiner with full knowledge of the Veteran's in-service noise exposure and access to service treatment records and private nexus opinions nevertheless opined that the Veteran's current hearing loss is not causally related to service. Also, the VA examiner reviewed service hearing test results and found no evidence of any significant upward shift in tested frequencies during service. This medical finding is significant as it addresses the situation addressed by the Court in Hensley. Here, the examiner was able to make a more informed opinion based on a review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board affords considerably more weight to the February 2012 VA medical opinion than to the statements contained in Dr. Meyer and Dr. Kantu's medical opinions. While not determinative by itself, it is also significant that there is no evidence of hearing loss for approximately 23 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Consequently, the one year presumption of in-service incurrence and service connection pursuant to Walker are not for application. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for bilateral hearing loss. II. Tinnitus The Veteran asserts that his tinnitus is a direct result of his Army reserve service when he was assigned to an artillery unit. Service connection is not warranted. In his first period of active service, treatment records are silent for any complaints, treatment or diagnosis of tinnitus. On reports of medical examinations from January 1983 to January 1984, the Veteran's ears were clinically normal. In his contemporaneous medical history, the Veteran denied ear trouble. For his second period of service, an August 1985 enlistment examination shows that clinical evaluation of the ears was normal. And an August 1985 report of medical history shows that the Veteran denied ear trouble. A January 1991 report of medical examination for the Army Reserves shows no indication of tinnitus. When the Veteran was afforded a VA examination in November 2010, he reported the onset of tinnitus to "about one year ago." After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner opined that it is less likely as not that the tinnitus is a result of acoustic trauma or noise exposure as a cannon crewman in service. The examiner noted that the tinnitus began about eighteen months prior and that the Veteran had exited service in 1986. While not determinative by itself, it is significant that he did not experience ringing in the years until approximately 23 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson, 230 F.3d 1330. In support of his claim, the Veteran submitted a December 2010 letter from Dr. Meyer who noted the Veteran's report of exposure to "very loud noises" serving in artillery and that "over the years this caused hearing loss with ringing in his ears. He says the ringing in his hears has been giving him headaches." Dr. Meyer further noted that Veteran's reports of seeing "many otolaryngologist who have concurred, but he does not remember who they were." However, the Board notes that a lay person's account of what a doctor purportedly said is too attenuated and inherently unreliable to constitute "medical" evidence. See Robinette, 8 Vet. App. 69. The Veteran also submitted a September 2011 treatment record from Dr. Kantu who noted that the Veteran's "tinnitus is consistent with noise damage during military.... At least as likely as not that this is due to such exposure." The Veteran was afforded another VA examination in February 2012. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner opined that it is less likely as not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner noted that since there were no complaints of tinnitus during service or at the time of separation from service, and no hearing loss noted at the time of discharge, it is less likely due to military noise exposure. The Board recognizes that an examiner cannot base an opinion on the lack of evidence in service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). However, in this case, the examiner did not rely solely on the lack of in-service documentation, but also on no hearing loss at the time of discharge. In other words, the lack of notation of tinnitus in service is but one factor that led the examiner to provide a negative nexus opinion. The Board acknowledges the positive private medical opinions from Dr. Meyer and Dr. Kantu. However, the Board assigns more probative weight to the most recent VA examination, which includes a rationale. Here, the examiner based on not only on interview and examination of the Veteran, but also on review of the Veteran's claims file which show no treatment for tinnitus in service and the absence of hearing loss upon exiting service. The private medical opinions were not as thorough as the VA medical opinion as they offered no rationale. It appears to the Board that the examiner was able to make an informed opinion based on the claims file review. See Nieves-Rodriguez, 22 Vet. App. 295. In addition, the VA examiner's opinion is also supported by the November 2010 VA examiner who opined the same. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim of service connection for tinnitus. III. Headaches Service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes, however, that even though the Veteran is not seeking service connection on a direct basis, all theories of entitlement--direct and secondary--must be considered. See Hodge v. West, 155 F.3d 1356, 1362-1363 (Fed. Cir. 1998) Service connection on a direct basis is not warranted. The preponderance of the evidence is against a finding that the Veteran's reported headaches began in service or are otherwise related to service. The Veteran does not contend that his headaches began in service or are otherwise related to service. In his first period of active service, treatment records are silent for any complaints, treatment or diagnosis of headaches. On reports of medical examinations from January 1983 to January 1984, the Veteran's neurological system was clinically normal. In his contemporaneous medical history, the Veteran denied frequent or severe headaches. For his second period of active service, an August 1985 enlistment examination shows that clinical evaluation of the neurological system was normal. And an August 1985 report of medical history shows that the Veteran denied frequent or severe headaches. A January 1991 report of medical examination for the Army Reserves shows no indication of headaches. Service connection on a secondary basis is also not warranted. Again, the Veteran is asserting that his headaches are due to hearing loss and tinnitus. In support of his claim, he submitted a December 2010 private treatment record from Dr. Meyer who opined that the Veteran's tinnitus causes his headaches. Given that the Veteran is not service connected for hearing loss or tinnitus, service connection cannot be granted on a secondary basis based on either of these disorders. In fact, the Veteran is not service connected for any disability, and thus service connection on a secondary basis is not warranted. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's service connection claim for headaches on direct and secondary bases. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for headaches is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs