Citation Nr: 1342926 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-39 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1977. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Indianapolis, Indiana, which denied the claims. The Board has previously considered these claims. In January 2012, the Board remanded the claim for additional evidentiary development, to include a supplemental VA examination and an attempt to obtain additional treatment records. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). FINDINGS OF FACT 1. In December 2013, prior to the promulgation of a decision in the appeal, the Veteran advised his Veterans Service Organization representative that he wished to withdraw his claim of entitlement to service connection for left ear hearing loss. 2. The probative and competent evidence of record establishes that the Veteran's current right ear hearing loss is not causally-related to a disease, injury or event in service. 3. The probative and competent evidence of record establishes that the Veteran's current tinnitus is not causally-related related to a disease, injury or event in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to service connection for left ear hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The Veteran's current right ear hearing loss disability was neither incurred in, nor aggravated by active service, and his sensorineural hearing loss did not manifest to a compensable degree within one (1) year of service separation. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307(a)(3), 3.309(a), 3.385 (2013). 3. The Veteran's current tinnitus disability was neither incurred in, nor aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of a claim. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, the Board received notice from the Veteran's representative in December 2013, advising that he wished to withdraw his claim of entitlement to service connection for left ear hearing loss because he reports that he does not have a hearing loss in the left ear. As such, the Veteran has withdrawn this appeal and there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. II. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claims, 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). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, VA satisfied the notification requirements of the VCAA by means of a letter dated in December 2007, which informed the Veteran of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that the Veteran provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter further satisfied the requirements of Dingess by informing the Veteran of how VA assigns the disability rating and effective date elements of a claim. The claims were subsequently readjudicated in a November 2008 Statement of the Case ("SOC"), which provided the Veteran with the pertinent VA laws, regulations and rating schedule provisions, and again in June 2009 and August 2012 Supplemental Statements of the Case ("SSOC"). B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as a VA examination report and subsequent examination addendum. Additionally, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Although the Veteran identified at least one private audiologist as providing treatment for his right ear hearing loss, he failed to complete the records release form provided to him. Accordingly, VA is unable to obtain any private treatment records for the Veteran's right ear hearing loss disability. Moreover, although the Veteran's complete May 2007 audiogram results were requested in the January 2012 remand, but are not of record, as will be discussed in greater detail below, the VA examiner noted that her claims folder review included a review of the audiogram, which demonstrated a hearing loss for VA purposes in the right ear only. As such, the Board finds that a remand for the complete audiogram results is not warranted in this case. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board notes that the Veteran was first afforded a VA examination for his service connection claim in January 2008. Review of the examination report reveals that the examiner reviewed the complete claims folder, including the Veteran's available treatment records, interviewed the Veteran regarding his claimed symptomatology, and provided a rationale for her opinion that the Veteran's hearing loss and tinnitus disorders were less likely than not related to active duty service. However, because the examiner's opinion appeared to be based in part, on a finding of an absence of a hearing loss disability during service and at separation from service, the claims folder was returned for an additional review. In this respect, the Board notes that, despite the lack of evidence of a hearing loss disorder in service, the Court has held that 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements for a hearing loss disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that 38 C.F.R. § 3.385 "does not serve as a bar to service connection" where there is an absence of an in-service audiometric examination capable of being compared to the regulatory pure tone and speech recognition criteria). Thereafter, in a January 2012 supplemental opinion, the examiner who performed the January 2008 examination again reviewed the claims folder and amended her opinion to note that she had considered other probative evidence of record, which she found to be relevant to the Veteran's claim. As this opinion was predicated on a complete review of the Veteran's claims folder, including the Veteran's assertions regarding his symptomatology, as well as the examiner's own medical knowledge, the Board finds the opinions, taken as a whole, to be adequate upon which to base a decision in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In addition to the aforementioned records, the claims folder also contains the Veteran's Social Security Administration ("SSA") records, including medical treatment reports. These records show that the Veteran applied for, and is receiving SSA disability insurance benefits for a primary diagnosis of disorders of joint infection and septic arthritis. There is no indication that his SSA benefits are for a hearing loss disability. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claims has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. III. Facts and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for the Federal Circuit ("Federal Circuit") recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Additionally, service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§3.307(a)(3), 3.309(a). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley at 158. The Veteran contends that his current bilateral hearing loss is the result of acoustic trauma in service. Specifically, he states that, as a wheeled vehicle mechanic, he sustained some hearing loss and tinnitus during service. As an initial matter, review of the Veteran's DD 214 shows that his military occupational specialty ("MOS") was that of a wheeled vehicle mechanic with the U.S. Army. This position has been identified as an occupation with a high probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Sept. 2, 2010). Accordingly, the Board concedes that the Veteran was exposed to in-service acoustic trauma. Review of his service treatment records reveals no complaints of treatment for, or a diagnosis of any hearing loss disorder. At the time of his November 1974 service enlistment examination, puretone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 10 10 -- 10 LEFT 10 10 15 -- 10 The results show that the criteria for hearing loss as described under 38 C.F.R. § 3.385 were not met for either ear, as the auditory threshold did not reach a level of 40 decibels or greater for any of the frequencies, or 26 decibels or greater for at least three frequencies. At the time of the Veteran's November 1977 service separation examination, puretone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 10 -- 10 LEFT 20 10 10 -- 5 Again, the results show that the criteria for hearing loss as described under 38 C.F.R. § 3.385 were not met for either ear, and there is no evidence that the Veteran reported any problems with hearing loss or tinnitus. The first evidence of record of the Veteran's post-service hearing ability is by means of a May 2007 VA Medical Center ("VAMC") audiological evaluation, at which time, the Veteran reported that he had experienced a sudden onset of right ear hearing loss only three years earlier; he also reported the sudden onset of right ear tinnitus at the same time. He said that he had experienced military noise exposure for three years during service, including machine gun noise and an episode of nearby tank fire. He denied occupational and recreational noise exposure. As noted above, although VA attempted to obtain the Veteran's private hearing loss treatment records, because the Veteran did not return the records request form, it was unable to do so. However, during his VAMC evaluation, the Veteran also reported that he had undergone an audiological evaluation at the Wellborn Clinic at the time of his sudden onset hearing loss three years before, at which time, an MRI had been performed and was found to be negative. While the puretone threshold results are not of record, the VA audiologist (who subsequently performed the January 2008 VA examination and wrote the January 2012 supplemental opinion) noted in January 2012 that her review of the results demonstrated a mild hearing loss at 4000-6000 Hertz only, with a right ear puretone threshold of 40 decibels at 4000 Hertz. This would indicate that the Veteran was shown to have a right ear hearing loss for VA purposes in May 2007; the examiner noted that the Veteran's left ear hearing was within normal limits with mild sensorineural hearing loss at 4000 and 6000 Hertz only. The clinician ordered a right ear hearing aid for the Veteran at that time. In January 2008, the Veteran was afforded a VA audiological examination, at which time, he again reported the sudden onset of hearing loss and tinnitus in the right ear three to four years earlier, when he was awakened to a popping noise and subsequent ringing in the right ear only. He added that a right ear hearing aid was recommended by Beltone. He also reported that he had experienced a concussion from a car accident in the 1980's. Puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 40 90 105 LEFT 05 05 05 15 35 Speech audiometry using the Maryland CNC revealed word recognition scores revealed a score of 90 percent for the right ear and 98 percent for the left ear. The results show that the criteria for hearing loss as described under 38 C.F.R. § 3.385 were met for the right ear, as the auditory threshold reached a score of at least 26 decibels for four frequencies; the left ear did not demonstrate a hearing loss disability for VA purposes. The examiner diagnosed the Veteran with a slight sloping to profound sensorineural hearing loss in the right ear. Although the examiner noted the Veteran's self-reported history of acoustic trauma in service, she opined that hazardous military noise exposure was not the cause of the Veteran's right ear hearing loss, as she specifically noted that he had reported the sudden onset of right ear hearing loss and tinnitus approximately three to four years before and there was no evidence of a hearing loss disability at separation from service. In early January 2012, the Veteran was seen at the VAMC for another audiological evaluation, at which time, the clinician noted that, while his speech recognition score for the left ear was 100 percent, the right ear score was only 52 percent. The Veteran reported experiencing a knocking noise in the right ear, which he said kept him awake at night. His right ear hearing aid was reprogrammed with the updated audiogram and electromagnetic interference taken. It was noted that a consultation with an ear, nose and throat specialist would be ordered to further evaluate his decreased right ear hearing. Again, the Veteran reported that the original hearing loss in his right ear had been of sudden onset. The clinician noted that the MRI which had been performed seven to eight years earlier was negative. During the VA examiner's January 2012 review of the claims folder, although she again noted the Veteran's separation examination findings of normal hearing bilaterally, she also observed that there had been no threshold shift greater than 10 decibels between his enlistment and separation audiogram results, which she interpreted as not favorable to the Veteran's claim. Moreover, she again observed that the Veteran's VA treatment records showed that he had reported the sudden onset of right ear hearing loss and tinnitus only three to four years before his 2007 VAMC audiological evaluation, when he was treated at the Wellborn Clinic. Significantly, the examiner noted that, in view of the negative MRI at that time, the most common diagnosis was a viral infection of the right inner ear. She added that the only possible treatment for this condition would have been provided only if a report and review of this sudden onset hearing loss had been obtained within one to two weeks of its onset, when a corticosteroid treatment regimen may have been prescribed. However, she added that the absence of this treatment protocol did not indicate that a viral infection was not the correct diagnosis. In summary, she noted that review of the claims folder did not include the MRI reports from the Wellborn Clinic, or the evaluation from Beltone, but that the MRI had been obtained to determine the Veteran's reported sudden onset hearing loss. She also noted that, per the Veteran's self report, occupational noise was limited to some air tools used for molding tires for approximately two years and he denied significant noise exposure while working for Whirlpool for 13 years. While she conceded that some noise exposure during military service was likely, based on the Veteran's reports during the January 2008 VA examination, an August 2008 letter from the Veteran, and his MOS as a wheeled vehicle mechanic, she found that there was contradictory evidence to identify any military noise as a direct cause of any current sensorineural hearing loss. Accordingly, based on this direct evidence (i.e., the Veteran's report of sudden right ear hearing loss approximately in 2004) and the lack of documentation of any hearing loss within one year of separation from service, the examiner concluded that it remained her opinion that it was less likely than not that military noise was related to the Veteran's current sensorineural hearing loss. She further opined that his current tinnitus was not caused by any military noise exposure, as this was reported to have occurred with the sudden right ear hearing loss in 2004. Based on a review of the complete claims folder, the Board concludes that the competent and probative evidence is against granting the Veteran's claims of entitlement to service connection for right ear hearing loss and tinnitus. With regard to the Veteran's claim of entitlement to service connection for right ear hearing loss, the Board has considered whether service connection is warranted either on a direct or presumptive basis for such disease. However, even though the Veteran now reports that acoustic trauma in service is the cause of his hearing loss, there are no audiometric readings suggesting that sensorineural hearing loss had manifested to a compensable degree either during service or within one year of service separation. Thus, service connection on a presumptive basis for sensorineural hearing loss is not warranted. With regard to granting service connection on a direct basis, the Board notes that whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the VA examiner's 2008 and 2012 opinions that the Veteran's right ear hearing loss and tinnitus are not related to acoustic trauma in service was based on a thorough review of the Veteran's service treatment reports, which were found to be negative for evidence of a hearing loss during active duty service. The examiner specifically noted that his 1977 separation examination results showed no greater than a 10 decibel change from the enlistment results, and indicated that his hearing was within normal limits. Moreover, she explained that the most likely cause of his reported sudden onset hearing loss and tinnitus was a viral infection, as his reported MRI showed normal results. The Board agrees, and assigns great weight to the VA examiner's opinion because the examiner not only considered the audiometric findings both at service enlistment and separation, but also considered the Veteran's personal statements, including his assertion that he first experienced hearing loss and tinnitus in approximately 2004, some 27 years after service. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the amount of time that passed following service without any documented complaint or diagnosis of a hearing loss is evidence that weighs against the Veteran's claim. In addition to the medical evidence, the Board has also considered the statements of the Veteran as to the cause of his right ear hearing loss and tinnitus. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Board finds that hearing problems are the types of symptoms the Veteran, as a layperson, is competent to describe, his statements have some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, while he is competent to report his symptoms, he is not necessarily competent to attribute those symptoms to a specific underlying disease or injury, such as alleged acoustic trauma during service. See McManaway v. West, 13 Vet. App. 60, 66 (1999) (holding that, where there is assertion of continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition"), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488 (1997). In this case, while the Veteran has repeated reported that he first experienced a sudden onset of right ear hearing loss around 2004, he seems to also argue that military noise exposure 27 years earlier somehow caused his hearing loss problems; significantly, there is no evidence that he reported a continuity of hearing loss symptomatology either during his May 2007 VAMC audiometry evaluation, or during his January 2008 VA examination. As such, the Board finds the VA examiner's opinions to be the most probative evidence of record as to the relationship between the Veteran's current disability and service, and ultimately outweigh any current assertion of a continuity of symptomatology since service. Accordingly, the Board concludes that the preponderance of the evidence does not support the Veteran's claim of entitlement to service connection for right ear hearing loss or tinnitus. In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for left ear hearing loss is dismissed. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs