Citation Nr: 1452011	
Decision Date: 11/24/14    Archive Date: 12/02/14

DOCKET NO.  12-14 878	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from January 1967 to January 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefits sought on appeal.

The Veteran requested to appear before the Board for a videoconference hearing.  Following an April 2014 phone call with the Veteran, he indicated that he wished to withdraw his request for a Board hearing.  As such, the hearing request is deemed withdrawn.  

In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS.  The Board has reviewed both the paper and electronic records in rendering this decision.  

The issue of entitlement to tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A left ear hearing loss disability is not shown in service or within the initial post separation year, and has not been attributed to active service.


CONCLUSION OF LAW

A left ear hearing loss disability was not incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2014).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

Two VCAA letters, both dated in November 2011, fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The November 2011 letters also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ( stating that "no error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced national service organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  In that regard, attempts were made to secure treatment records for a left ear infection in the mid-1990s from two different hospitals.  Both hospitals indicated that they did not have any records of the Veteran's treatment for a left ear disability for the timeframes submitted.  In August 2012, VA notified the Veteran that if he wished to have these records considered, he would have to submit them.  To date, the Veteran has not submitted any treatment records from a left ear infection incurred in the mid-1990s.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2014). 

In this case, the Veteran was most recently provided a VA examination in January 2012, with an addendum opinion dated in September 2012.  The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducted a physical examination.  Based on the foregoing, the examiner concluded that the Veteran's left ear hearing loss was not due to or aggravated by an event, disease, or injury incurred during active service.  Therefore, as the opinion was based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion obtained in this case is adequate.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2014).

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id at 159.

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, 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.

In adjudicating these claims, the Board must assess the competency and credibility of the veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge.  Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994).

Factual Background and Analysis

The Veteran contends that he has left ear hearing loss related to his significant noise exposure during service.  VA has conceded that the Veteran was indeed exposed to significant noise during service.  Thus, the main question before the Board is whether the Veteran's left ear hearing loss is attributable to an event, injury, or disease incurred during active duty.  

A review of the service treatment records shows a threshold shift in the left ear between enlistment and discharge.  The Veteran was not treated for hearing-related complaints during service.  

During his October 1966 enlistment audiological examination, puretone thresholds, in decibels, were as follows (converted from ASA units to ISO/ANSI units):




HERTZ



500
1000
2000
3000
4000
LEFT
15
10
10
10
5

During his December 1970 discharge audiological examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
10
10
10
15

Following service, the Veteran reported being treated for a left ear infection in the mid-1990s.  At that time, he lost all of his hearing in his left ear.  In his claim, he reported the onset of his hearing problems in the mid-1990s.  

In a private audiogram, dated in what appears to be 2006, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
110
110
110
X
110

No thresholds were taken at 3000 Hz.  The audiologist could not test word recognition ability in the left ear.  

The Veteran was afforded a VA audiological examination in December 2011, during which the examiner was unable to test the Veteran's left ear as he had no hearing whatsoever.  The Veteran reported the onset of his left ear hearing loss was following treatment for an infection in the mid-1990s.  The examiner provided a negative nexus opinion as to the etiology of the left ear hearing loss, but the examiner did not have the Veteran's claims file present when reaching this conclusion and stated he would offer and addendum if the file was provided.  

In a January 2012 VA opinion, an examiner indicated that the Veteran had a significant shift in thresholds between enlistment and discharge, but his hearing was normal by VA standards.  After review of the claims file, the examiner found that the Veteran's current sensorineural hearing loss in the left ear is not due to in-service acoustic trauma.  In reaching this conclusion, the examiner cited to medical treatise evidence from the Institute of Medicine noting that hearing loss related to acoustic trauma is measurable immediately following noise exposure, and delayed onset of hearing loss is extremely unlikely.  The examiner also found that any current hearing loss is more likely than not related to a post-service cause.  The examiner indicated that the cited medical literature supports his opinion, even with a significant shift in hearing thresholds during service.  The Board notes that it does not appear that the January 2012 examiner converted the Veteran's left ear hearing thresholds from ASA to ISO/ANSI units when finding a "significant shift" in thresholds between enlistment and discharge.  

In March 2012, the Veteran's claims file was reviewed by the December 2011 examiner.  He stated that even after converting the Veteran's enlistment left ear hearing thresholds, there was no significant shift between enlistment and discharge.  The examiner opined that "[g]iven normal hearing in the left ear at the time of separation, and no significant shift in hearing thresholds at any frequency, it is less likely as not that his hearing loss in the left ear is related to military noise exposure."  

In an April 2012 letter from the treating ear, nose, and throat (ENT) doctor, he indicated that the Veteran's "left ear total hearing loss [is] due to what sounds like viral labyrinthitis."  He stated that the Veteran was also exposed to loud noise while working on the railroad following service.  The ENT noted that it is possible that the Veteran's right ear hearing loss was related to service, but he did not offer the same opinion with respect to the left ear.  

There are no additional private or VA treatment records showing treatment for left ear hearing problems, nor have any clinicians attributed the Veteran's claimed left ear hearing loss to his military noise exposure.  

As an initial matter, the December 2011 audiological findings support the conclusion that the Veteran has a left ear hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385 (2014).

Therefore, the question to be decided in the present appeal is whether such left ear hearing loss is associated with the Veteran's active duty.  The Board does not dispute that the Veteran likely experienced acoustic trauma during service.

Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss.  

Initially, the Board notes that there is a remarkable lack of credible evidence of left hearing loss pathology during service and for many years following separation.  Notably, the earliest clinical evidence of record showing left ear hearing loss is in 2006, and other records referencing treatment for a left ear infection with hearing loss dating back to the mid-1990s.  The Veteran has consistently, competently, and credibly reported the onset of his left ear hearing loss as occurring following treatment for a left ear infection in the mid-1990s.  The service treatment records are negative for hearing loss complaints.  Because left ear sensorineural hearing loss was not shown to a compensable degree within one year of separation, presumptive service connection for a chronic disease is not warranted.

The grant of service connection, therefore, requires competent evidence relating the diagnosis of left ear hearing loss to the Veteran's service.  Although the evidence record shows left ear hearing loss, it does not contain reliable evidence which relates the claimed disability to any event, injury, or disease in service.  In fact, all opinions find that the Veteran's left ear hearing loss is unrelated to service and have attributed it to the left ear infection in the mid-1990s.  

The Board finds that the opinions expressed in the December 2011 audiologist's examination report (with March 2012 addendum), the January 2012 VA audiologist's report, and the April 2012 letter from the Veteran's treating ENT of significant probative value.  The December 2011 and January 2012 examiners discussed the pertinent evidence, noting that the enlistment and separation examinations showed normal left ear hearing (for VA purposes).  In essence, despite examining the Veteran, obtaining a history from him, and reviewing pertinent service and post-service records, the examiner was unable to link the Veteran's left ear hearing loss disability to his military service.  The Board finds the 2011 and 2012 examiners' opinions to be highly probative regarding the etiology of the Veteran's left ear hearing loss.  The probative nature of the 2011 examination report with the 2012 addendum opinion is based on the fact that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination.  Equally, the 2012 VA examiner based his opinion on review of the claims file with specific reference to evidence contained in the claims file.  There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact.  The Board thus finds the VA examiners' conclusions that the Veteran's left ear hearing loss is less likely than not related to his service to be of greater probative value than the Veteran's unsupported statements.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Moreover, the most probative evidence of record shows that the Veteran's left ear hearing loss is attributable to his post-service left ear infection (also described as viral labyrinthitis), and not to his military service.   

The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  
In other words, the Board has considered whether any reported continuity of symptomatology of left ear hearing dating back to service would be sufficient to warrant service connection.  In this regard, the Veteran is certainly competent to report that he experiences difficulty hearing in his left ear.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  However, even where a veteran asserts continuity of symptomatology since service, he is not necessarily competent to establish a nexus between the continuous symptomatology and the currently claimed condition.  See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom.  McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495- 98 (1997).  

Furthermore, it must also be considered that the Veteran has consistently reported that the onset of his left ear hearing loss was in the mid-1990s-over 20 years following his discharge from service.  In other words, even taking into account the Veteran's assertions, the Board ultimately finds the most probative evidence of record regarding the etiology of his left ear hearing loss to be the opinions of the competent VA healthcare and private healthcare providers.  As noted, the VA examiner considered the Veteran's assertions regarding the onset of his complaints, but also considered the nature of post-service treatment for a left ear infection, and the nature and severity of his current left ear hearing loss as demonstrated on audiometric testing.  

In summary, the Board finds that the negative record at service discharge and in the years following service is more probative than the Veteran's more recent statements.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Absent competent and reliable lay or medical evidence relating these claimed disabilities to service, and in consideration of the VA opinion discussed above, the Board concludes that the claim of entitlement to service connection for left ear hearing loss must be denied.  The preponderance of the evidence is against the Veteran's claims and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. 


ORDER

Service connection for left ear hearing loss is denied.


REMAND

Upon preliminary review of the evidence of record, the Board finds that additional development is necessary regarding the Veteran's service connection claim for tinnitus.  

In the January 2012 VA examination, the examiner indicated that the Veteran's tinnitus was due to his current bilateral sensorineural hearing loss.  The RO requested a clarification opinion as the Veteran was only service-connected for right ear hearing loss.  In a September 2012 addendum, another VA examiner found that the Veteran's tinnitus was unrelated to his right ear hearing loss.  A clear rationale was provided.  However, there is no opinion as to whether the Veteran's tinnitus has been aggravated (chronically worsened) by his right ear hearing loss.  As such, the claim must be remanded for a supplemental opinion.  

Accordingly, the case is REMANDED for the following action:

1.  Forward the Veteran's claim file, including any pertinent evidence contained in the electronic files, to the September 2012 examiner, if available, for a supplemental opinion as to the nature and etiology of the Veteran's tinnitus.  If the September examiner is unavailable, forward the claims file to another appropriate examination for a supplemental opinion.  The examiner should note that the claims file has been reviewed.  

After reviewing the file, including the Veteran's specific contentions and previous VA examination report, the examiner should offer an opinion as to whether the Veteran's tinnitus was caused or aggravated (chronically worsened) by his service-connected right ear hearing loss.  

It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

It is left to the examiner's discretion whether to reexamine the Veteran.  

The examiner should provide a complete rationale for any opinions provided.  
 
2.  Then, readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC).  After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs