Citation Nr: 1450488 Decision Date: 11/14/14 Archive Date: 11/26/14 DOCKET NO. 12-08 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1971. This appeal is before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript is included in the claims file. In June 2014, the Veteran submitted additional evidence directly to the Board along with a written waiver of initial RO consideration. See 38 C.F.R. § 20.1304(c). FINDING OF FACT Neither hearing loss nor tinnitus began in service, is the result of in-service noise exposure, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2014). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated in November 2008. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and statements from his wife and service comrades have been obtained. Also, he was provided an examination of his claimed hearing loss and tinnitus in January 2009 by a VA audiologist who reviewed the claims file. This examination and its associated report were adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claims. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties consisting of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, during the June 2014 Board personal hearing, the VLJ complied with these requirements. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing the Veteran's hearing was harmless. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection 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 requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also 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). In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. §§ 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in his October 2008 claim, November 2008 statement, and July 2014 hearing testimony, the Veteran contends that his current hearing loss and tinnitus are the result of in-service noise exposure. In his December 2009 notice of disagreement, the Veteran asserted that he was exposed to helicopter and aircraft engine noise performing maintenance on aircraft. As reflected in the November 2008 statement, he asserts that he never received medical care for his hearing in Vietnam, mainly because he was young and thought it would go away and had no idea who to contact about it or where to go for treatment. The Veteran's service records reflect that he served as a helicopter and aircraft mechanic and repairman. Service treatment records reflect treatment for medical problems such as sore throats, upper respiratory infections, and viral gastroenteritis, but no complaints related to hearing loss or tinnitus. On August 1967 entrance examination, April 1968 service examination, June 1970 service examination, and October 1970 examination for separation from service, the Veteran was noted to have had a normal clinical evaluation of the ears, and audiological testing of the ears was within normal ranges. On October 1970 separation examination, audiological testing revealed pure tone thresholds in the right ear of 0 decibels at 500, 1000, and 2000 Hertz in each ear, and 5 decibels in the right ear and 0 decibels in the left at 4000 Hertz. At the time of the April 1968 and June 1970 examinations, the Veteran reported not having and never having had ear trouble, running ears, or hearing loss. He reported no tinnitus or other such symptoms, while reporting in June 1970 a history of such medical problems as occasional sore throat, a boil, and an episode of back pain in December. In February 1971, the Veteran reported that there had been no change in his medical condition since his October 1970 examination. Thee record reflects no treatment for hearing loss or tinnitus prior to the Veteran's October 2008 claims for service connection. In support of his claims, the Veteran submitted statements from his service comrades, R.A. and D.D, received in October 2008 and November 2008, respectively. R.A. stated that he served with the Veteran in Vietnam near helicopters, that they were and not provided ear protection, and that the Veteran complained daily concerning his hearing problems. D.D. stated that he served with the Veteran as helicopter repairmen, that they were exposed to excessive engine turbine noise and not provided ear protection, and that the Veteran often complained of ear pain and hearing troubles. The Veteran also submitted a statement from his wife, dated in June 2014, indicating that, during his service he complained of ringing in his ears. She stated that, before they were married, she never noticed any defect in his hearing, but that when he came home from Vietnam he gradually started losing his hearing. On January 2009 VA examination, it was noted that the Veteran complained of constant bilateral tinnitus. It was noted that the Veteran was a helicopter repairman from 1968 to 1971 in service and was in-country in Vietnam, and that noise exposure had been conceded based on this profile. It was noted, however, that on review of the claims file, audiometric information was available from pre-induction, separation, and two time periods between, and that all of the audiograms showed normal hearing across all frequencies with no evidence of a shift over time or a notched configuration. It was noted that Veteran complained of having had tinnitus for "about 20 years," and the VA examiner opined that the Veteran's tinnitus and hearing loss were likely from the same etiology. Audiological testing revealed a hearing loss disability for VA purposes. After reviewing the record and examining the Veteran, the VA examiner opined that neither hearing loss nor tinnitus was likely a result of or related to military noise exposure. The examiner based this opinion on the fact that the Veteran had four completely normal audiograms in the military, including at discharge, with no change at any frequency over time, and that the onset of tinnitus was reported as being around 20 years after military service. The Veteran submitted a statement dated in November 2009 from a private doctor, Dr. M.G., indicating that the Veteran has disabling tinnitus likely due to noise exposure during military work. In his March 2012 substantive appeal, the Veteran stated that he felt that the VA examiner had misunderstood his statements that tinnitus and hearing loss started to interfere with his work about 20 years before, that they began in service, and that when his tinnitus first began he thought it would go away. The Veteran also submitted a statement from a private physician, Dr. R.D. Dr. R.D. indicated that he had not reviewed the Veteran's service treatment records or past VA medical records, but had reviewed his history and a November 2013 audiogram and concluded that noise exposure during military service most likely caused his hearing loss and tinnitus. Dr. R.D. explained that noise was a known cause of hearing loss and tinnitus. Dr. R.D. also attached treatment records dated on November 21, 2013. Such records reflect that the Veteran was 65 years old and presented complaining of hearing loss in both ears of gradual onset that had been occurring for 20 years, and was now worsening. He also reported a long history of bilateral tinnitus after military service. His diagnosis was tinnitus, probably noise-induced, and hearing loss, most likely affected by military service. Included in the treatment records was general information regarding tinnitus, stating, "If you are older, advancing age is generally accompanied by a certain amount of hearing nerve impairment and tinnitus. If you are younger, exposure to loud noise is probably the leading cause of tinnitus, and often damages hearing as well." During his June 2014 Board hearing, the Veteran testified that the onset of his hearing loss and tinnitus was in 1969 in Vietnam while he was working on helicopters. He stated that he would complain about his ears ringing to some of the guys he worked with, and that many of them said they had the same ringing, but to tough it up, and that it would go way. He testified that it did go away for a little while, but after continued exposure to helicopter engines and transmissions, and other noise such as from machine guns. He stated that these conditions became permanent, and that this was in 1969. He further testified that such problems had been ongoing since service, and that he had gone for a physical about 20 or 25 years ago and told the doctor that he had ringing in his ears; he stated and that the doctor informed him that this was called tinnitus, but that the doctor did not think that there was a cure for it. He testified that he did not have post-service noise exposure working for the telephone company for 35 years installing and maintaining telephones, and that he had retired in 2006. He further testified that he had had regular physicals with the telephone company, and had reported tinnitus at those physicals, but that he did not think that these records were obtainable. He testified that he had constantly had ringing his ears for 45 years. In view of the evidence as a whole, service connection for bilateral hearing loss and tinnitus is not warranted. Initially, the record does not reflect that sensorineural hearing loss manifested to a level of 10 percent or more within a year of the Veteran's discharge from service; thus, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309 for chronic diseases are not applicable. The record reflects current tinnitus and bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. It also reflects likely exposure to very loud noise in service as a helicopter and aircraft mechanic and repairman. However, the evidence does not support a finding that any current hearing loss or tinnitus is related to such in-service noise exposure or to service in any other way. Initially, the Board notes the statements of the Veteran and his wife that his hearing loss and tinnitus began in service, in about 1969. It also notes the statements of R.A. and D.D. that the Veteran "complained daily concerning his hearing problems" and "often complained of ear pain and hearing troubles." However, the Board finds such assertions not to be credible. In addition to the Veteran's consistently normal audiological test results and ear evaluations in service, the fact that the Veteran never reported any hearing loss or tinnitus in service, while complaining of other routine medical problems such as sore throats, colds, and stomach problems, weighs against the credibility of these assertions. This is particularly the case given R.A.'s and D.D.'s assertions that the Veteran "complained daily concerning his hearing problems" and "often complained of ear pain and hearing troubles." The fact that the Veteran affirmatively reported not having and never had had ear trouble, running ears, or hearing loss in April 1968 and June 1970, while reporting a history of occasional sore throat, a boil, and an episode of back pain, weighs even more heavily against these assertions. Also, the Veteran has made some inconsistent statements regarding the onset of his hearing loss in tinnitus; while he has repeatedly asserted in statements and testimony to VA regarding his claims that hearing loss and tinnitus began in service, nearly 40 years prior to his service connection claims, the November 21, 2013, treatment records from Dr. R.D. indicate that the Veteran complained of hearing loss of gradual onset that had been occurring for 20 years, and on January 2009 VA examination the Veteran reported having tinnitus for "about 20 years." The Board notes the conflicting competent medical opinions of Drs. M.G. and R.D. and those of the January 2009 VA examiner. However, the Board finds the January 2009 VA audiologist's opinions to be of greater probative weight than that of the other opinions. The January 2009 VA examiner's opinions were based on a more accurate factual premise than those of Drs. M.G. and R.D. The VA examiner reviewed the entire claims file and specifically based her opinions on the documented evidence therein. Drs. M.G. and R.D. indicated no review of the claims file or other pertinent previously existing records; rather, each apparently based his opinions on the reported history of Veteran, which the Board does not find to be credible for the reasons discussed above. These private medical opinions are thus not based on an accurate factual premise, and are therefore of significantly diminished probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Also, the January 2009 VA examiner provided a clear and persuasive rationale for her opinions, based on documented audiological records during the Veteran's period of service and the Veteran's own reported history. In this regard, the VA examiner specifically noted that the Veteran was a helicopter repairman in service and was in-country in Vietnam, and that noise exposure had been conceded based on this profile. Conversely, Dr. M.G. provided no rationale or explanation for his opinion whatsoever, and Dr. R.D.'s explanation was simply that that noise was a known cause of hearing loss and tinnitus; Dr. R.D. did not explain how in-service noise exposure was the causal factor in the Veteran's specific case, which is particularly relevant given that the Veteran's service was more than 40 years prior to Dr. R.D.'s examination and opinion. The Board notes the Veteran's assertion in his March 2012 substantive appeal that the January 2009 VA examiner misunderstood his statements that tinnitus and hearing loss started to interfere with his work about 20 years before, and that they actually began in service. However, on private treatment with Dr. R.D. on November 21, 2013, the Veteran again reported that "[t]he onset of the hearing loss has been gradual and has been occurring for 20 years," in contradiction to statements made to VA that his hearing loss began in service more than 40 years prior. Also, as discussed above, the Board finds the Veteran not to be credible in reporting the onset of his tinnitus in this case. In light of the above, that the weight of the evidence is against a finding that either hearing loss or tinnitus began in service, is the result of in-service noise exposure, or is otherwise related to service. Accordingly, service connection for bilateral hearing loss and tinnitus must be denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs