Citation Nr: 1343282 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-11 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability due to an acoustic neuroma, claimed as secondary to the service connected residuals of scarring of the right tympanic membrane. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from September 1976 to September 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Board previously remanded this case for a new VA examination in a February 2012 decision. The Veteran failed to show for the examination, but the case was still appealed to the Board. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals an additional record which is pertinent to the present appeal. The Veteran's Appellant Brief, in the form of an Informal Hearing Presentation is located in Virtual VA. FINDINGS OF FACT 1. The Veteran's right ear disability is less likely than not incurred in or aggravated by his service. 2. The Veteran's tinnitus is as likely as not incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The Veteran's right ear disability is less likely than not incurred in or aggravated by his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385, 3.655 (2013). 2. The Veteran's tinnitus is as likely as not incurred in or aggravated by his service. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in May 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim and, as warranted by law, affording the Veteran a VA examination in August 2009. On remand, the VA attempted to afford the Veteran another audiology examination. In February 2012, the VA noted that the Veteran's address was different in the Veterans Benefits Administration and Veterans Health Administration records and attempted to verify his address and phone number for accuracy. The record shows that the VA was able to verify the Veteran's phone number, but does not indicate a success or failure to verify the address. In March 2013, the Veteran failed to show for his scheduled VA examination and did not supply any reason for his absence. In October 2012, the subsequent SSOC was marked "Return to Sender," and returned to VA. These two facts could show that VA was unable to contact the Veteran and therefore he never had knowledge of his scheduled examination. In contrast to this, the Veteran via his representative, submitted an October 2012 waiver of his 30 day waiting period to expedite his case to the Board. Furthermore, VA received an October 2013 Informal Hearing Presentation, showing that the Veteran was able to contact VA to continue his appeal. This document did not dispute, give reason for or even mention the missed VA examination. The burden of assistance in not only on VA. In fact, "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board has fulfilled its duty to assist and must evaluate the Veteran's claim based on the evidence of record. 38 C.F.R. § 3.655 (2013). There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Merits of the Claim The Veteran seeks service connection for right ear hearing loss and tinnitus. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the criteria for entitlement to service connection for right ear hearing loss have not been met, but the criteria for service connection for tinnitus have been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be a chronic disability resulting from that injury. 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (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 a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system, including sensorineural hearing loss. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The Veteran has a current right ear hearing loss disability. 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, 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. At the August 2007 VA examination, the Veteran did not respond to any frequency range in his right ear and was assigned a reading of 105 decibels for each frequency. In hearing examinations administered by his employer, he consistently demonstrated hearing acuity of 40 decibels or greater in all thresholds of the right ear, starting in 1991 and continuing to at least 2007. He also demonstrated acuity of greater than 26 decibels in the same range. Thus, the Veteran has a current disability in accordance with 38 C.F.R. § 3.385. The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disabilities and the in-service disease or injury. In the August 2007 VA examination, the examiner opined that because the Veteran's hearing was within normal limits at his separation examination and because his hearing only decreased after the 1991 removal of an acoustic neuroma, 11 years after his discharge, it is less likely than not related to his service. He did not give an etiological opinion for tinnitus, as none was reported. Audiograms administered by the Veteran's employer show that the Veteran's hearing in his right ear was within normal limits in the 1980s, but then decreased sharply in the 1990s. The 1981 examination was administered by VA. The 1975 examination is the Veteran's entry to service and the 1980 examination is for separation. Examinations later than 1994 are not included on the chart but show consistent right ear hearing loss. Hz ? 1975 1980 1981 1982 1986 1990 1991 1991 1991 1992 1993 1994 1000 10 20 10 20 25 60 60 80 75 80 99 80 2000 10 20 0 10 15 65 65 80 80 80 85 70 3000 - 20 - 20 15 65 65 90 80 85 90 80 4000 10 15 5 10 20 55 55 90 90 90 95 90 As shown by the chart above, the Veteran's right ear hearing is within normal limits at the beginning and end of his service. Furthermore, it remains within normal limits through the mid-1980s, and decreases significantly starting only in 1990. While the Veteran was exposed to hazardous noise in his Military Occupational Specialty as an Aviation Boatswain's Mate, he also had post-service civilian noise exposure including working with chainsaws, lawnmowers and owning a motorcycle. During service, the Veteran complained that once his hear did not "pop" when he got off a plane, but there was no further treatment. He also experience Eustachian tube blockage in the form of slight wax buildup. In the Veteran's separation examination, there is a note of ear drum perforation and otosclerosis in the right ear. The Veteran is already service connected for his right ear drum residual scars. There is no note or diagnosis of a neuroma or hearing loss in service, nor any time before 1990. In May 1991, Dr. R.G.O. removed an acoustic neuroma from the Veteran's right side. He noted that the neuroma negatively affected the Veteran's hearing in the right ear, but did not opine as to the neuroma's source. The VA examiner opined that in light of the documented neuroma removal, the right ear hearing loss was not due to service. The February 2012 Board decision remanded for a new examination, to include an opinion whether there is a relationship between the in service symptoms of Eustachian tube blockage, tympanic membrane scarring and otosclerosis and the Veteran's post service development of an acoustic neuroma. Unfortunately, because the Veteran did not show for his VA examination, the Board must decide the claim based on the evidence of record. 38 C.F.R. § 3.655(b). There is no medical evidence showing the neuroma developed as a result of the Veteran's in service noise exposure. Because determining the etiology of the neuroma would require medical expertise, the Veteran's lay opinion carries little weight. The Veteran is not competent to opine as to the etiology of the neuroma, as he is not an audiologist nor does he have any medical training regarding audiology or other ear disabilities. He also does not cite medical treatises or any writings to support his claim. 38 C.F.R. § 3.159(a)(1). Therefore, while there is evidence of noise exposure in service and a current right ear disability, there is no evidence of a nexus between them. There is also no evidence of a diagnosis in service or within a year of service. There is also no continuity of symptomatology from service to present, as the hearing loss disability only manifested in 1990 at the earliest, ten years after service. Because the evidence preponderates against the claim of service connection for a right ear disability, the benefit of the doubt cannot be applied and service connection is denied. The Veteran also has intermittent tinnitus. In the August 2007 VA examination, the examiner noted that the Veteran reported a negative history of tinnitus. As no tinnitus was reported, the examination did not include any further tinnitus questions. In his March 2008 VA-9 form, the Veteran explained that he had responded negatively because at that time he though his tinnitus was from old age. He also stated that the ringing "comes once in a great while and it passes." The Veteran is competent to testify as to this disability, as it is something of which he would have personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran also complained of intermittent tinnitus in his January 1981 VA examination. Therefore, the Veteran has a current disability of intermittent tinnitus. The Veteran believes that his tinnitus is related to his service. As discussed above, the Veteran is competent to report his tinnitus. As also noted above, the Veteran was exposed to hazardous noise in service. The Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of in-service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). At the January 1981 VA examination he complained of occasional tinnitus. He is consistent in describing his tinnitus as intermittent. He notes this in his March 2008 VA-9 form, in his explanation of why he did not report tinnitus to the August 2007 VA examiner. The Veteran stated in May 2007 that he recalls ringing in his ear from service. While the 1981 examination was only 4 months after service, this statement ties the incurrence of tinnitus to the Veteran's service. The Board finds that because of the facial plausibility and consistency of the Veteran's testimony over the years, he is credible concerning his description of his tinnitus symptoms and chronology. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). In certain cases, any element of service connection can be proven by lay evidence. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the Veteran is competent to relate his in-service noise exposure to his current disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (2007). As tinnitus is something which a lay person can observe, in this case, the Board finds the Veteran competent and credible to opine as to its etiology as well. Here, the Veteran's statements regarding in service noise exposure agree with his Military Occupational Specialty, he has a current disability of tinnitus and because his positive etiological opinion is plausible and consistent, it is credible to relate his disability to his service. When there is an approximate balance of evidence in favor and against the Veteran, VA is to give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). While there is evidence that tends to show that the Veteran's disability is not service-connected, such as the lack of diagnosis in the VA examination, there is also his lay evidence that shows there is a nexus between his disability and his service. The Board is of the opinion that this point of equipoise has been reached in the instant case. Therefore, based on its review of the relevant evidence, and giving the benefit of the doubt to the Veteran, the Board finds that it is as likely as not the Veteran's tinnitus is service-connected. Id. Accordingly, service connection for tinnitus is granted. ORDER Entitlement to service connection for a right ear hearing disability is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs