Citation Nr: 1410120	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  10-32 738	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Gladney, Associate Counsel





INTRODUCTION

The Veteran had active duty service from November 1968 to November 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims folder associated with the Veteran's claims.  A review of the Virtual VA claims processing system reveals additional VA audiology records from October 2011 to December 2011.  All other documents are either duplicative of those already included in the physical claims file or irrelevant to the claims on appeal.


FINDINGS OF FACT

1.  Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of the Veteran's discharge from service.

2.  Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service.


CONCLUSION OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice 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; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. 

Relevant to the claims adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a March 2009 letter, sent prior to the August 2009 rating decision, advised the Veteran of the evidence and information necessary to substantiate his claims for service connection for bilateral hearing loss and tinnitus, as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. 

Relevant to the duty to assist, the Veteran's service treatment records, VA treatment records, and Social Security Administration records have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained. 

The Veteran was afforded a VA examination in July 2009 in order to adjudicate his claims for service connection for bilateral hearing loss and tinnitus.  In this regard, the Board notes that the VA examiners offered etiological opinions as to the claimed disorders and based their conclusions on a review of the record, to include interviews with the Veteran and full examinations.  Moreover, such opinions offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  As such, the Board finds that the opinion proffered by the VA examiner is sufficient to assist VA in deciding the claims for service connection for bilateral hearing loss and tinnitus.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of 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 Veteran); 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).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.


II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.

In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology.  However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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 held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley, supra at 159.

The Board must consider that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran is seeking service connection for bilateral hearing loss and tinnitus, which he has asserted were incurred as a result of his exposure to noise during service.  In this regard, the Veteran has asserted that he was exposed to artillery, weapons, explosives, aircrafts, diesel engines, and radio noise, without the use of hearing protection.

The Veteran's October 1967 enlistment examination audiology test results revealed: 

Frequency (Hz)
500
1000
2000
3000
4000
Right 
0
0
0
X
5
Left 
5
0
0
X
30

In the Veteran's accompanying self-report of medical history, he noted having had no history of or current complaint of ear, nose, or throat trouble, running ears, or hearing loss.

His in-service treatment records do not contain any complaints, treatments, or findings related to hearing loss or tinnitus.  

Upon separation, in September 1971, the Veteran's hearing was within normal limits.  Physical examination revealed that his ears were normal.  The Veteran's hearing measured 15/15 bilaterally and audiometric testing revealed:

Frequency (Hz)
500
1000
2000
3000
4000
Right 
0
0
0
X
0
Left 
0
0
0
X
0

In the Veteran's report of medical history he reported having had no previous or current ear, nose, or throat trouble, or hearing loss.  

Post service, the Veteran underwent an August 2003 VA audiology consultation; he reported experiencing hearing loss and tinnitus for many years (since [the] military).  He also reported that he worked in factories and had to wear ear protection in his last job.  The examiner noted the Veteran had noise exposure in both his military and civilian occupations.  No ear disease, ear surgery, or dizziness was reported.  Audiometric testing revealed:

Frequency (Hz)
500
1000
2000
3000
4000
Right 
10
10
50
60
70
Left 
15
10
60
65
65

The examiner's impression was left greater than right mild to severe high frequency sensorineural hearing loss.  It was noted that the Veteran experienced tinnitus which was "completely gone post 1 minute."  The Veteran's Maryland CNC word list speech recognition scores were 100 percent at 70dB.  The examiner diagnosed the Veteran with sensorineural hearing loss, combined types.

The Veteran filed a claim of service connection for hearing loss and tinnitus in March 2009.  The Veteran stated that he was on a compound next to a Korean artillery battery.  He stated that the battery fired 22 hours a day 7 days a week.  He related that he had had hearing loss and ringing in his ears since and that such had gotten worse.

In April 2009, VA received witness statements from R.M.L. and J.W. detailing the Veteran's hearing difficulties.  R.M.L. asserts that she has "seen [the Veteran] often and had trouble speaking with him for several years."  She asserts that it appears his hearing has grown gradually worse for some time.  J.W. states that she has known the Veteran since 1981 and he has always had trouble hearing people talk.  She reports that "it used to be that in order for him to hear you[,] you would have to speak loudly[.]  [N]ow you have to get his attention if you want to ask him anything or have him facing you when you are speaking[.]" 

Thereafter, in July 2009, the Veteran was afforded a VA compensation and pension audiology examination.  The Veteran complained of bilateral hearing loss and bilateral intermittent tinnitus.  Upon testing, audiometry results revealed:

Frequency (Hz)
500
1000
2000
3000
4000
Right 
10
5
55
60
70
Left 
10
10
50
55
65

Maryland CNC word list speech recognition scores were 94 percent in the right ear and 96 percent in the left ear.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus.  It was noted that the tinnitus is at least as likely as not a symptom associated with the hearing loss.  In his opinion, the examiner stated that hearing loss and tinnitus are less likely as not caused by or a result of military noise exposure history.  In his rationale, the examiner stated that the Veteran served 3 years as a microwave system technician.  The claims file revealed hearing within normal limits at separation.  As a civilian, he worked in a factory and as a truck driver.  The examiner opined that the Veteran's hearing loss and tinnitus are less likely as not related to his military noise exposure history.

In a February 2010 notice of disagreement, the Veteran stated that the opinion of the doctor was inaccurate in his findings.  He related that while he was in the Army he was never given any hearing protection.  He stated that he had hearing loss and tinnitus since service and throughout the years they had worsened.  He reported that his civilian noise exposure involved his work in a factory and that he wore hearing protection which was mandatory for the job.

In October 2011, the Veteran underwent additional audiometric testing in conjunction with a VA audiology consultation.  The Veteran's audiometric results revealed:

Frequency (Hz)
500
1000
2000
3000
4000
Right 
15
15
65
70
85
Left
15
15
65
75
80

The examiner noted that the Veteran had moderately-severe to severe bilateral sensorineural hearing loss.  It was noted that puretone thresholds in the right ear decreased by 5-20dB since 2009 and puretone thresholds for the left ear decreased by 5-15dB since 2009.  Word recognition scores were 96 percent at 70 dB in the right ear and 80 percent at 70dB in the left ear.

The evidence above clearly shows that the Veteran has current diagnosis of bilateral hearing loss and tinnitus.  The Board finds that there is credible evidence which shows that the Veteran was exposed to noise in service.  The determinative issue is whether the Veteran's current hearing loss and tinnitus is related to service, including to the noise exposure in service.  In addressing this question, the Board notes that there is medical and lay evidence which speaks to whether there is a connection between hearing loss and tinnitus and service.

With respect to the lay evidence, the Veteran claims that he has had hearing loss and tinnitus since service.  In assessing the lay evidence, the Board must determine whether the Veteran is competent to provide his opinion regarding the etiology of his hearing loss and tinnitus.  As it pertains to tinnitus, the Veteran is competent to state that he first had tinnitus which started in service and that it continued following his discharge from service.  In this respect, tinnitus is a condition the Veteran can perceive and experience himself.  It is a condition capable of lay observation.  Consequently, the Veteran is competent to report having ringing in the ears (i.e. tinnitus).  While the Veteran is competent to report that he had tinnitus which started in service and continued following service, the Board must address whether the Veteran's assertion is credible.  The Board finds that his assertion is not credible.  In this regard, the Board notes that during the time of the Veteran's discharge from service, physical examination of his ears were normal.  Additionally, at service discharge the Veteran denied having a history any problems with his ears.  The Board finds that the reported history given contemporaneous to service is more probative than statements made 30 plus years following service and given in connection with a claim for benefits.  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).  

Besides the lay evidence of record, the claims file contains medical evidence of record which speaks to whether there is a connection between the Veteran's tinnitus  and service, including service noise exposure.  In this regard, the Board notes that in July 2009 VA offered an opinion that tinnitus was less likely as not caused by or a result of military noise exposure.  In his rationale, the examiner stated that the Veteran served 3 years as a microwave system technician.  The examiner noted that the claims file revealed hearing within normal limits at separation and that as a civilian, the Veteran worked in a factory and as a truck driver.  The Board finds that the opinion is probative to address the nexus element in this case.  The Board notes that the examiner based his opinion on a review of the claims file, including the Veteran's service medical records, an examination of the Veteran, and the history reported by the Veteran concerning his exposure to noise in service, as well as after service.  Moreover, the examiner provided a sound rationale for the opinion given.  

The Board notes that the RO denied the claim in August 2009 taking into consideration the July 2009 medical opinion.  In February 2010, the Veteran expressed his disagreement with the opinion.  In this regard, the Veteran stated that he wore hearing protection in his factory civilian job and that the examiner did not take this into consideration.  First, the Board does not find credible this after the fact report of wearing hearing protection in his civilian factory job.  The Board finds more probative the fact that the examiner elicited a detailed account of the Veteran's noise exposure in service and after service.  He noted that the Veteran had military noise exposure of artillery, weapons, explosives, aircraft, diesel engines and radio noise.  He described his civilian exposure as involving factory noise and noise related to being a truck driver.  During the examination, there is no report of the Veteran wearing hearing protection and there is no report from the Veteran that he provided the examiner with this information.  It was only after he received an adverse determination related to his claim did the Veteran provide this additional information of wearing hearing protections.  

Second, a review of the SSA records reveals a work history report.  It shows the Veteran's 15 year work history.  The Veteran reported being an assembler at an air filter factory and with a brake cable factory; a retail support specialist at a distribution center, a correction officer at a state prison and a maintenance worker at a factory.  He also reported that these jobs required the use of machines, tools or equipment which supports the VA examiner's report of civilian noise exposure.  The Board fails to find that in each of the various positions that he held that he consistently wore hearing protection.  This is not what the Veteran specifically alleged in the February 2010 notice of disagreement.  In fact, he reported wearing hearing protection as it pertained to working for only one of the factories.  As such, the Board finds that he had several years of civilian noise exposure in which hearing protection was not worn or alleged to have been worn.  Given this, the Board finds that the opinion of record is adequate and probative for adjudication purposes.

In the absence of probative medical evidence linking the Veteran's tinnitus to service, the Board must conclude that the preponderance of the evidence is against the claim of service connection.

Turning to the issue of service connection for bilateral hearing loss, the Board notes that this claim, as previously stated, rest on whether there is competent evidence of a nexus between the current hearing loss and service.  The Board observes that there is lay evidence, by way of the Veteran's statements, and medical evidence, by way of a July 2009 medical opinion which addresses this element of the claim of service connection.  With respect to the Veteran's claim that his hearing loss is related to his noise exposure in service, the Board finds that he is not competent to provide a medical opinion regarding the etiology of his condition.  There is no evidence that the Veteran has been medically trained to address questions of medical etiology.  As the Veteran is not competent to provide this medical opinion, his statement cannot be found to be probative and supportive of his claim of service connection for bilateral hearing loss.

The only competent medical evidence of record concerning the etiology of the Veteran's claim of service connection for bilateral hearing loss is the July 2009 VA medical opinion.  The opinion is competent and probative in addressing whether there is a nexus between the Veteran's current hearing loss and service.  In finding that hearing loss was less likely as not caused by or a result of military noise exposure history, the examiner stated that the Veteran served 3 years as a microwave system technician.  The examiner also noted that the claims file revealed hearing within normal limits at separation and that as a civilian, the Veteran worked in a factory and as a truck driver.  The Board finds that the opinion is probative to address the nexus element in this case.  The Board notes that the examiner based his opinion on a review of the claims file, including the Veteran's service medical records, an examination by the Veteran, and the history reported by the Veteran concerning his exposure to noise in service, as well as after service.  Moreover, the examiner provided a sound rationale for the opinion given.  

The Board notes that it is not clear as to whether the July 2009 examiner took into consideration the Veteran report that he first had hearing loss in service and that it continued following his discharge from service.  Notwithstanding such, the Board finds that the opinion is still adequate and probative as the Board finds that the Veteran's report of having hearing loss since service to not be credible.  As stated above, the Board finds that the history given contemporaneous to service denying any problems with his ears is more credible than the history of having hearing loss which started in service which was given 30 plus years after service.  The Board notes that this history was given in relation to trying to receive VA benefits.  Even the history which was given in 2003 concerning the onset of hearing loss was given in relation to being evaluated to obtain VA issued hearing aids.  As the Board finds that the Veteran's assertion of having hearing loss which started in service and continued after service is not credible, service connection under the provisions of 38 C.F.R. § 3.303(b).

Moreover, as it pertained to the Veteran's February 2010 assertion of wearing hearing protection in his civilian occupation, the Board finds his statement not credible for the reasons cited above in relation to the claim of service connection for tinnitus.  Consequently, the July 2009 opinion is probative for adjudication purposes, as there was no reason for the examiner to address the wearing of hearing aids in providing his etiology opinion concerning hearing loss.

The Board notes that there is medical evidence which links the Veteran's tinnitus to hearing loss.  As the Board has found that hearing loss is not related to service, there can be no secondary service connection for tinnitus.  See 38 C.F.R. § 3.310.  Moreover, as bilateral hearing loss was diagnosed several years after service discharge, presumptive service connection is not warranted.  See 38 C.F.R. §§ 3.307, 3.309 (2013)

As the evidence fails to demonstrate competent, credible and probative evidence that the Veteran's current hearing loss and tinnitus is related to service, the Board must find that the preponderance of the evidence is against the claims.  As such, the benefit-of-the-doubt doctrine is not applicable and the claims of service connection for bilateral hearing loss and tinnitus must be denied.  

CONTINUE ON THE NEXT PAGE
ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.




____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs