Citation Nr: 1414323	
Decision Date: 04/02/14    Archive Date: 04/11/14

DOCKET NO. 12-17 638A	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel
INTRODUCTION

The Veteran served on active duty from June 1952 to May 1956.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In that decision, the RO denied service connection for bilateral hearing loss and tinnitus.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2014. A transcript of the hearing has been associated with the Veteran's electronic claims file.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. Bilateral hearing loss has not been shown to be causally or etiologically related to an in-service event, injury or disease.

2. Tinnitus has not been shown to be causally or etiologically related to an in-service event, injury or disease.





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CONCLUSIONS OF LAW

1. Bilateral 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, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2. Tinnitus was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veteran's Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in August 2009, prior to the initial unfavorable adjudication in August 2010. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. All identified private medical records, as well as those submitted by the Veteran, have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA examination in August 2010. The examination was adequate because the examiner considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examination, conducted a thorough medical examination of the Veteran, and provided a sufficient supporting rationale for the opinion. Based on the foregoing, the Board finds the examination report to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claims for service connection for bilateral hearing loss and tinnitus. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied.




II. Merits of the Claim

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis and organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).

Finally, if there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3,309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). 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 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

For the purposes of clarity and to avoid repetition, the Board will first address the issue of service connection for bilateral hearing loss, and then will address the issue of service connection for tinnitus. Both issues will be addressed using the legal framework outlined above.

A. Bilateral Hearing Loss

The Veteran contends he is entitled to service connection for bilateral hearing loss. For the reasons stated below, the Board finds that service connection for bilateral hearing loss is not warranted on a direct or presumptive basis.

In addition to the principles laid out above, with respect to claims for service connection for hearing loss impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155, 157 (1993).

First, service connection is not warranted on a direct basis. The August 2010 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss based on his audiogram, and therefore the first element of service connection is met.
Turning to the second element, the Veteran has testified and his DD-214 reflects that he served as a machinist's mate while in the Navy. This required him to work in the ship's engine room while the engines and other machinery were running. The Veteran testified that he was not provided with any ear protection. Based on this evidence, the Board finds that the Veteran had significant noise exposure during service, and therefore the second element of service connection is met.

With respect to the third element of service connection, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is related to his active duty service. The Veteran has stated that his in-service noise exposure is what caused his current bilateral hearing loss. While the Veteran is competent to testify to lay observable facts, such as the onset or persistence of symptoms, the Veteran is not competent to opine as to a causal relationship between his in-service noise exposure and his bilateral hearing loss, as such a determination requires medical expertise. Jandreau, 492 F.3d at 1377. 

In a July 2009 statement, the Veteran indicated that he began to notice hearing loss at the time of his discharge in May 1956, which the Veteran is competent to report. Id.  However, the credibility of this statement is undermined by the fact that the Veteran informed the VA examiner in August 2010 that his hearing problems began in approximately August 2000. Additionally, there is no indication of complaints of hearing loss until a November 2000 private audiogram. Such gaps in time, while not dispositive of the issue of nexus, can be weighed against lay statements provided by the Veteran. Buchanan, 451 F.3d at 1336-37; Maxson, 230 F.3d 1333. Here, the 44 year period without complaint between the Veteran's separation from service and the November 2000 audiogram weighs heavily against the Veteran's statement and further undermines its credibility. As such, the Board finds that the Veteran's statement concerning the persistent hearing loss since service must be assigned minimal probative weight.

Turning to the medical evidence of record, the Veteran was provided with a VA audiological examination in August 2010. During the examination, the Veteran reported that he first noticed a hearing problem approximately 8 to 10 years prior to the examination. Based on this information, the VA examiner found that the Veteran's hearing loss was less likely than not related to his military service, as the onset of the Veteran's hearing loss was approximately 44 years after his discharge from service. While such inconsistencies may be the result of the passage of time, these inconsistencies prevent the Veteran's statement concerning persistent symptoms since service from being assigned any probative weight. As there is no competent and credible lay evidence of record on the issue of nexus, the issue must be determined based on the medical evidence of record.

The Veteran submitted an August 2011 private medical opinion. In that opinion, the Veteran's private physician stated that the Veteran's sensorineural hearing loss "may" be a result of long term noise exposure from working in the engine rooms while in service. While there is no evidence indicating the examiner is not competent or credible, a medical opinion expressed in terms of "may" implies "may or may not," and is therefore too speculative to establish a medical nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)). Due to its speculative nature, the Board unfortunately cannot assign any probative weight to this private medical opinion.

May 2009 and June 2009 VA treatment records reflect that the Veteran complained of worsening hearing over the previous 4 to 5 years. Private audiograms from November 2000, August 2001, February 2007, July 2008 and December 2008 are also of record. While each audiogram clearly shows that the Veteran currently has sensorineural hearing loss, none of the audiograms link the Veteran's bilateral hearing loss to his active duty service. Based on the probative medical evidence of record, the preponderance of the evidence is against a finding of a nexus between the Veteran's bilateral hearing loss and his active duty service. As such, direct service connection for bilateral hearing loss is not warranted. See 38 C.F.R. § 3.303.

Second, bilateral hearing loss cannot be service connected on a presumptive basis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309(a). Sensorineural hearing loss, although not specifically enumerated, is considered to be a chronic disease as it is an "organic diseases of the nervous system," and therefore can be presumptively service-connected. 38 C.F.R. § 3.309(a). 
However, there is no evidence that the Veteran's bilateral hearing loss manifested to a compensable degree within one year of his separation from service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the Veteran stated in July 2009 that his hearing loss has been present since discharge, the credibility of this statement is undermined by the fact that the Veteran informed the VA examiner that his hearing loss had its onset in approximately August 2000. As such, it can be assigned no probative weight. The medical evidence of record does not reflect any complaints of hearing loss until a November 2000 private audiogram, which indicates that the bilateral hearing loss manifested 44 years after the Veteran's separation from service, and therefore well outside the applicable presumptive period. As there is no competent and credible evidence indicating that the Veteran's bilateral hearing loss manifested to a compensable degree within one year of his discharge from service, service connection based on the presumption in favor or certain chronic diseases is not warranted.

Finally, service connection for bilateral hearing loss is not warranted based on continuity of symptomatology. 38 C.F.R. §§ 3.307, 3.309(a); Walker, 708 F.3d 1331. As stated in the previous paragraph, sensorineural hearing loss is considered a chronic disease and therefore is eligible for service connection based on continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331.

However, there is no evidence that the Veteran's bilateral hearing loss manifested in service to a sufficient degree to identify the disease. The Veteran did not receive audiological testing upon entrance or at separation, but his service treatment records are silent for complaints of hearing loss or any other ear problems while in service. While the Veteran has stated that he noticed hearing problems upon separation from service, the credibility of these statements is undermined by the fact that during his August 2010 VA examination the Veteran reported that his hearing loss began in approximately 2000. While such inconsistencies may be due to the passage of time, they also undermine the credibility of the Veterans statements as to in-service manifestation and render them of little probative value. Therefore, service connection based on continuity of symptomatology is not warranted. 38 C.F.R. §§ 3.307, 3.309(a); Walker, 708 F.3d 1331.

Although the Veteran has established a current disability and an in-service injury or event, the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss disability is related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

B. Tinnitus

The Veteran contends he is entitled to service connection for tinnitus. For the reasons outlined below, the Board finds that service connection is not warranted on a direct or presumptive basis.

First, service connection is not warranted on a direct basis. The Veteran has stated that he currently has tinnitus, which he is competent to report as it is lay observable. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App 370, 374 (2002). Based on this evidence, the Board finds the Veteran has a current disability. 

Turning to the second element, the Veteran has testified that he was a machinist's mate while in the navy. This required him to work in the engines rooms of the ship to which he was assigned while the engines and other machinery were running. The Veteran testified that he was not provided with any ear protection. Based on this evidence, the Board finds that the Veteran experienced noise exposure during service, and therefore the second element of service connection is met.

With respect to the third element of service connection, the preponderance of the evidence is against a finding that the Veteran's tinnitus is related to his active duty service. The Veteran has attributed his tinnitus to service. The Veteran is competent to opine as to the presence of a causal relationship between his tinnitus and his service, as to do so does not require technical medical knowledge. Jandreau, 492 F.3d at 1377.

However, the Board finds that his opinion is not credible.  His statement that he has had tinnitus since service is in conflict with the medical evidence of record. During his August 2010 VA audiological examination, the Veteran reported that his tinnitus had its onset 15 to 20 years ago, which would have been approximately 34 years after his separation from service. Based on this information, the examiner opined that the Veteran's tinnitus was less likely than not related to service due to the fact that it manifested so long after the Veteran's separation from service. 

The Board notes that the examiner did state in the opinion that the "[e]tiology of tinnitus cannot be determined on the bases of available information without resorting to speculation." However, the rest of the opinion clearly states that based on the Veteran's statement indicating that tinnitus had its onset approximately 34 years following his separation from discharge, that the Veteran's tinnitus is less than likely due to the Veteran's active duty service. Thus, reading the examination as a whole, the examiner was not opining that a determination regarding a nexus between the Veteran's tinnitus and his active duty service could not be reached, but instead that while active duty service could be ruled out as a cause of tinnitus due to the late onset of symptomatology, the actual cause of the Veteran's tinnitus cannot be determined based on the record. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012).

Post-service private treatment records show that the Veteran's first complaint of tinnitus occurred in February 2007. VA treatment records from May 2009 and June 2009 show that the Veteran reported experiencing intermittent tinnitus since approximately May 1999, which is 43 years following his separation from service. Such inconsistencies as to the onset and persistence of his tinnitus undermine the credibility, and thereby the probative value, of the Veteran's statements statements. Further such lengthy gaps in time without treatment or complaint can be weighed against the Veteran's statements. Buchanan, 451 F.3d at 1336-37; Maxson, 230 F.3d 1333. As the lay evidence on the issue of nexus is of minimal probative value and the medical evidence does not reflect any complaints of tinnitus or its symptoms since separation from service until at the earliest approximately 34 years after his separation from service, the Board finds that the preponderance of the evidence is against a finding of a nexus.
Second, the Veteran's tinnitus cannot be service-connected on a presumptive basis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. The Veteran currently has tinnitus, which is not a listed chronic disease, and therefore is not eligible for presumptive service connection. 38 C.F.R. §§ 3.307(a), 3.309(a). 

However, even assuming arguendo that tinnitus is encompassed by the listed category of "other organic diseases of the nervous system," the disability did not manifest to a degree of 10 percent or more within one year of the Veteran's separation from service. 38 C.F.R. § 3.307(a)(3). The Veteran's post-service treatment records are silent for complaints of tinnitus until May 2009, when the Veteran reported experiencing tinnitus since approximately May 1999, which is 43 years after the Veteran's separation from service and well outside the applicable presumptive period. Private medical records first reflect complaints of tinnitus in starting in February 2007. As there is no competent and credible evidence of record showing manifestation within one year after service, presumptive service connection for a chronic disease is not appropriate. 38 C.F.R. §§ 3.307, 3.309.

Finally, the Veteran cannot service connect tinnitus on the basis of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F.3d 1331. Again, tinnitus is not a listed chronic disease and therefore service connection cannot be established via continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, 708 F.3d 1331.

However, again assuming that tinnitus is included under "other organic diseases of the nervous system," continuity of symptomatology has not been shown. The Veteran's service treatment records are silent for complaints of tinnitus, and the Veteran has not stated that his tinnitus began in service. Thus, the preponderance of the competent and credible evidence is against a finding that tinnitus manifested in service to an extent sufficient to identify it and allow for observation sufficient to establish chronicity. 38 C.F.R. § 3.303(b). As such, service connection based on continuity of symptomatology is not warranted.

Although the Veteran has established a current disability and an in-service injury, event or disease, the preponderance of the evidence weighs against a finding of that the Veteran's tinnitus is related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs