Citation Nr: 1343063 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-10 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from November 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. Hearing loss did not have its onset during active service and is not related to any in-service disease, event, or injury. 2. Tinnitus did not have its onset during active service and is not related to any in-service disease, event, or injury. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Specifically, VA must notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim, which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. VA must also assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). VA satisfied its duty to notify by sending the Veteran a letter in December 2009, prior to initially deciding his claims. This letter informed him of his and VA's responsibilities for obtaining evidence and met all notification requirements outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also satisfied its duty to assist by securing all available evidence necessary for equitable resolution of these claims, including service treatment and personnel records and post-service VA and private treatment records, and affording the Veteran a VA examination, during which an examiner addressed the etiology of the Veteran's hearing loss and tinnitus. The Veteran does not assert that VA violated its duty to notify, that there are any additional records that VA should obtain on his behalf, or that the VA examination was inadequate. The Board thus finds that no further notice or assistance is required. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran seeks service connection for hearing loss and tinnitus, conditions the medical record confirms currently exist. In an application for compensation and written statement dated December 2009, the Veteran contends that he developed hearing loss and tinnitus in service in 1969, the former secondary to in-service combat noise and the latter secondary to a grenade that exploded near him. In the written statement and a VA Form 9 (Appeal to Board of Veterans' Appeals) dated April 2011, he claims that although he was Section Chief and had a supply military occupational specialty (MOS), he was tasked to provide security for the compound and convoys, which required him to ride in a gun jeep and man a M60 machine gun when delivering supplies. He emphasizes that a supply MOS did not preclude him from having to conduct security patrols/ambushes outside the perimeter at night and that it is naïve to think that combat arms soldiers were the only soldiers involved in combat in Vietnam. The Veteran does not contend, and the evidence of record does not show, complaints or a diagnosis of, or treatment for, hearing loss within one year of separation from service. In fact, according to the Veteran's application for compensation, he "was never treated in service or later" for this condition. During a March 2010 VA examination, the Veteran reported that, in 1969 after a grenade exploded, he could not hear for a couple of hours. He has not indicated that this hearing loss continued to manifest since then, rather, that he has it now and it developed because of the in-service noise exposure. Service connection for sensorineural hearing loss is therefore not warranted on a presumptive basis theory of service connection. 38 U.S.C.A. §§ 1101, 1112(a), 1113; 38 C.F.R. §§ 3.307, 3.309(a). As to the Veteran's assertion of in-service noise-related hearing loss and tinnitus, the Board finds that it is outweighed by the more probative evidence to the contrary. First, the Veteran is competent to report that, in service, he was exposed to excessive noise levels and experienced difficulty hearing and ringing in his ears as noise and these symptoms are lay observable. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998) (layperson is generally incapable of opining on matters requiring medical knowledge); but see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). And, in this case, like the VA examiner who evaluated the Veteran in March 2010, the Board questions the credibility of the Veteran's report of continuous ringing in his ears since service. (As previously indicated, the Veteran does not report continuous hearing loss.) The Veteran stated that he experienced such ringing for decades, but never once, including during or after service, mentioned it to a medical professional despite seeking treatment for many other conditions. It seems logical to assume that, if an individual is experiencing an annoying medical condition such as tinnitus continuously for over 4 decades, at some point, he would have mentioned it. Instead, the Veteran first reported it in his application for VA compensation, filed in 2009, 40 years after the grenade allegedly exploded near him. Further, the Veteran has not submitted a medical opinion linking his hearing loss and tinnitus to his active service, including the reported noise exposure and grenade explosion, and, not being trained in medicine, he is not competent to provide such a nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009) (in a cause of death claim, holding that it was error to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it). In addition, a VA examiner evaluated the Veteran in March 2010 and reviewed his case and found that she would be resorting to mere speculation if she determined a relationship between the current hearing loss and tinnitus and the Veteran's in-service military noise. She pointed out the following: (1) There is no separation hearing examination of record; (2) The Veteran has a lengthy history of occupational noise exposure (post-service); (3) Although the Veteran described tinnitus initiating after a nearby hand grenade explosion, there is no documentation of this in the claims file; and (4) There is no tinnitus complaint in the Veteran's VA medical chart. Inasmuch as the record includes no competent and credible evidence linking the Veteran's hearing loss and tinnitus to an in-service disease, event, or injury and sensorineural hearing loss did not manifest to a compensable degree within a year of the Veteran's discharge from service, the Board concludes that hearing loss and tinnitus were not incurred in or aggravated by active service and sensorineural hearing loss may not be presumed to have been so incurred. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against each of the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs