Citation Nr: 1343050 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-29 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Rutkin, J.M. INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was scheduled to testify at a hearing before the Board on December 10, 2013, and was notified of the hearing date, time, and location in an October 2013 letter. He did not appear for the hearing and has not requested that the hearing be rescheduled or provided an explanation for his failure to appear. Accordingly, the Board will proceed with appellate review. See 38 C.F.R. § 20.704(d) (2013) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). FINDINGS OF FACT 1. The Veteran's left ear hearing loss pre-existed active service, and was not aggravated by a disease, injury, or event in service. 2. The Veteran's right ear hearing loss did not manifest until several years after his period of active service, and was not caused or aggravated by a disease, injury, or event in service. 3. The Veteran's tinnitus did not manifest until several years after his period of active service, and was not caused or aggravated by a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left or right hearing loss have not been satisfied. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. The criteria for entitlement to service connection for tinnitus have not been satisfied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). A May 2009 letter provided the Veteran with all notice required under the VCAA, and was followed by adequate time for him to submit information and evidence before initial adjudication of this claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b); see also Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The Veteran's service treatment records and VA medical records are in the claims file. See 38 C.F.R. § 3.159(c). He has not identified any other records or evidence he wished to submit or have VA obtain, and there is no indication that outstanding VA or other Federal records exist that might support these claims. See Golz v. Shinseki, 590 F.3d 1317, 1321, 1321 (Fed. Cir. 2010) (holding that VA is not required to "obtain records in every case in order to rule out their relevance" unless "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits"). A VA audiological examination was performed in March 2010. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the examination report, the examiner reviewed the pertinent medical history, set forth the clinical findings, and provided an opinion with a supporting discussion that enables the Board to make fully informed decisions on these claims. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Although the examiner did not explicitly identify a rationale for the conclusion reached, the examiner's reasons for finding against a relationship to service are clear from the discussion preceding the opinion. Specifically, the examiner noted that the Veteran's left ear hearing loss pre-existed his active service with no evidence of aggravation during that time (given the normal left ear hearing at separation), and that the Veteran's right ear hearing was normal at entrance and separation from active service, and continued to be normal almost ten years later, as shown in a March 1976 Army Reserve enlistment examination. Similarly, although the examiner did not directly articulate an opinion as to whether the Veteran's tinnitus was related to service, the examiner's finding that tinnitus was a symptom of hearing loss precludes a relationship to service as a matter of logic, given the examiner's finding that the Veteran's hearing loss was not related to service. Thus, further clarification or explanation is not warranted. See Monzingo, 26 Vet. App. at 107 (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). In light of the above, the Veteran has had a meaningful opportunity to participate in the processing of these claims, and there is no indication of prejudicial error with regard to VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). Accordingly, the Board will proceed with appellate review. II. Analysis The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus, arguing in his October 2011 substantive appeal (VA Form 9) that his hearing problems were caused or aggravated by in-service noise exposure and progressively developed over time. For the following reasons, the Board finds that service connection for these disorders is not warranted. Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). The Veteran's diagnosed sensorineural hearing loss is considered a chronic disease. See 38 C.F.R. § 3.309(a) (defining other organic diseases of the nervous system as chronic diseases). For the chronic diseases defined as such under VA law, the evidentiary requirements for establishing service connection are more relaxed than the medical nexus element of the above three-part test. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). If the evidence is not sufficient to show that the disease was chronic at the time of service, then a continuity of symptoms after service must be shown to warrant service connection under this provision. C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1338-39. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss as a chronic disease may be established on a presumptive basis by showing that it manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disorder during service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A. Hearing Loss The Veteran's exposure to hazardous noise during active service is established based on his report of such exposure while serving as an Army Paratrooper and Radio Operator in an infantry unit. He also stated in his September 2010 notice of disagreement (NOD) that he had hours of infantry training and was exposed to weapons fire and aircraft engine noise. See 38 U.S.C.A. § 1154(a) (West 2002) (providing that the circumstances of the veteran's service must be taken into account). There is no evidence that the Veteran served in combat conditions. The May 2010 VA examination report reflects that the Veteran had "possible" post-service noise exposure in his civilian occupation working with computer electronics, but no recreational noise exposure. For the purposes of this decision, the Board assumes that the Veteran had no significant post-service noise exposure. While in-service noise exposure is established, the evidence weighs against a relationship between the Veteran's hearing loss and in-service noise exposure or any other incident of service. With regard to his left ear hearing loss, an October 1965 enlistment audiogram shows that the Veteran had a puretone threshold of 40 decibels at the frequency of 4000 Hertz, which shows left ear hearing impairment at entrance onto active duty. See 38 C.F.R. § 3.385 (providing, in pertinent part, that hearing of 40 decibels or higher at any of the frequencies 500, 1000, 3000, or 4000 Hertz establishes disabling hearing loss); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (observing that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. When the claimed disability is noted on entry intro active service, service connection may only be established on the basis of aggravation of the disorder by service beyond its natural progression. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). A pre-existing disease or injury will be presumed to have been aggravated by service if the evidence shows that the underlying disability underwent an increase in severity during that time. Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a); but see Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (observing that a flare-up of symptoms during service does not necessarily constitute evidence of aggravation of the underlying disorder). In that case, the presumption of aggravation may only be rebutted with clear and unmistakable evidence, including evidence that the increase was due to the natural progress of the condition. 38 C.F.R. § 3.306(b). If the evidence does not show a worsening during service, then the burden is on the Veteran to show aggravation. See id. (providing that aggravation may not be established when all the evidence of record shows that the disability underwent no increase in severity during service); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Because the Veteran's left ear hearing loss was noted on entry, service connection may only be established based on aggravation. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. There is no evidence that the Veteran's pre-existing left ear hearing loss increased in severity during service. A subsequent February 1966 Airborne examination report and the September 1967 separation examination report reflect audiograms showing normal hearing, even after they are converted from American Standards Association (ASA) units to International Standards Organization (ISO)-American National Standards Institute (ANSI) units. Specifically, they show puretone thresholds of 20 or below at all recorded frequencies both before and after conversion. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. Moreover, the Veteran denied hearing loss or hearing problems in the September 1967 report of medical history at separation. Thus, in the absence of an increase of left ear hearing loss during service, the burden is on the Veteran to show aggravation. See 38 C.F.R. § 3.306(b). That burden has not been met. In the May 2010 VA examination report, the examining audiologist concluded that the Veteran's left ear hearing loss was less likely than not related to service. In this regard, the examiner noted the fact that the Veteran had high frequency hearing loss at entrance and that the subsequent audiograms, including at separation, showed normal left ear hearing. The examiner also noted that a March 1976 Army Reserve enlistment examination also showed hearing loss in the left ear, with puretone thresholds of 35 decibels at 500 Hertz and 60 decibels at 4000 Hertz. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. This audiogram, dated almost ten years after the Veteran's October 1967 separation from service, does not show aggravation of his pre-existing left ear hearing loss during active service. Accordingly, service connection for left ear hearing loss is denied, as the preponderance of the evidence shows that it pre-existed and was not aggravated by active service. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. With regard to the Veteran's right ear hearing loss, the audiograms during active service, including at separation, all show normal hearing, even after converting the puretone threshold decibels from ASA to ISO-ANSI units. Moreover, almost ten years later, the March 1976 Army Reserve enlistment examination report shows that the Veteran had normal hearing in the right ear, with puretone thresholds of 10 decibels at all recorded frequencies. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. The earliest evidence of right ear hearing loss is an October 1995 VA treatment record, which reflects an audiogram showing puretone thresholds of 45 decibels at 3000 and 4000 Hertz in the right ear. See id. Although the Veteran stated at the March 2010 VA examination that he had experienced hearing loss ever since active service, this assertion is not credible as it conflicts with the service treatment records showing normal hearing, the March 1976 Army Reserve audiogram showing normal hearing in the right ear almost ten years after service, and the Veteran's own denial of hearing loss in the September 1967 and March 1976 reports of medical history. See Caluza v. Brown, 7 Vet. App. 498, 511(1995) (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Indeed, the Veteran's statements in support of his claim are in tension with this account, as he stated in the September 2010 NOD and October 2011 substantive appeal that he separated with normal hearing but that his hearing deteriorated over time. Because the Veteran's account of experiencing hearing loss ever since service is not credible, it is not entitled to any weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that the witness's credibility affects the weight to be given to his testimony). Based on the fact that the Veteran's right ear hearing was normal at separation and continued to be normal almost ten years later, as reflected in the March 1976 Army Reserve examination report, the March 2010 VA audiologist concluded that the Veteran's right ear hearing was less likely than not related to in-service acoustic trauma. The audiologist's opinion is highly probative, as it is based on a review of the pertinent medical history and the examiner's own expertise. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail, their persuasiveness, and the clinician's access to a veteran's medical records). The Board has considered the Veteran's contention that his hearing loss was caused or aggravated by acoustic trauma from hazardous noise exposure during service. However, as a lay person in the field of medicine, the Veteran does not have the training or expertise to render a competent opinion on this issue, as this is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); see also Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the Veteran's opinion in support of a relationship to service by itself cannot support his claim, and is outweighed by the VA audiologist's findings to the contrary. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"). Further weighing against a relationship to in-service noise exposure is the long period of time that elapsed between the Veteran's separation from service in October 1967 and the earliest credible evidence of right ear hearing loss in October 1995, almost thirty years later. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service). Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for bilateral hearing loss is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Tinnitus There is no credible evidence that the Veteran's tinnitus manifested until a number of years after his period of active service. The service treatment records make no mention of ringing in the ears or other hearing problems, and the Veteran denied hearing loss or ear problems in the September 1967 report of medical history at separation. Further, almost ten years later, he denied hearing loss or ear problems in the March 1976 report of medical history in connection with his Army Reserve enlistment examination. The earliest documentation of tinnitus is the October 1995 VA treatment record, which reflects that the Veteran had tinnitus at this time. Although the Veteran reported at the March 2010 VA examination that he had experienced tinnitus ever since active service, this statement is not credible as if conflicts with the service treatment records and the March 1976 post-service report of medical history, all of which reflect his denials of hearing loss or ear problems. See Caluza, 7 Vet. App. at 511; Curry, 7 Vet. App. at 68. Thus, this assertion is not entitled to any weight. See Washington, 19 Vet. App. at 368. The March 2010 audiologist's finding that the Veteran's tinnitus was a symptom of hearing loss weighs against a relationship to service, given the fact that his hearing loss itself is not related to service. The long period of time between the Veteran's separation from service in October 1967 and the earliest credible evidence of tinnitus in October 1995 further weighs against a relationship to in-service noise exposure. See Maxson, 230 F.3d at 1333. His own opinion on this issue is not competent and thus does not support his claim, as this is a medical determination that is too complex to be made based on lay observation alone given the timeframe involved. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; see also Layno, 6 Vet. App. at 469- 71. Moreover, it is outweighed by the audiologist's opinion. See King v, 700 F.3d at 1345; Madden, 125 F.3d at 1481. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for tinnitus is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs