Citation Nr: 1507076	
Decision Date: 02/18/15    Archive Date: 02/26/15

DOCKET NO.  13-03 232A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

1. Entitlement to service connection for bilateral hearing loss (BHL).

2. Entitlement to service connection for tinnitus. 


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from August 2002 to August 2006, with Reserve service from 2009 to 2010. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 

The Veteran requested a Central Office Board hearing on his February 2013 appeal form, but failed to report to the hearing. Proper notice of the date and time of the hearing were given. The Board finds the hearing request to be withdrawn. 


FINDINGS OF FACT

1. There is no current diagnosis of BHL for VA purposes. 

2. Tinnitus was not manifested during service and was not exhibited within the first active duty post service year; current tinnitus has not otherwise been shown to relate to the Veteran's active service.

CONCLUSIONS OF LAW

1. The criteria for an award of service connection for BHL have not been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2014).

2. The criteria for an award of service connection for tinnitus have not been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In March 2010 and February 2012 letters, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). The AOJ notified the Veteran of information and evidence necessary to substantiate his claims for service connection. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has been able to participate effectively in the processing of his claims and the duty to notify has been met. 

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All adequately identified and available medical records have been secured, to the extent available. 

The Veteran was afforded VA examination regarding his service connection claims and, for reasons explained below, the Board finds that the VA examination report is fully adequate, wholly articulate and takes into account all pertinent aspects of this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board's duties to assist have been met. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). 

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; this applies only to diseases that are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

VA has taken the position that sensorineural hearing loss, as a disease of the central nervous system, is a chronic disease subject to presumptive service connection and the continuity provisions of 38 C.F.R. § 3.303(b). See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995 (on file at VA). Recently, the United States Court of Appeals for Veterans Claims held that tinnitus was also a disease of the central nervous system and subject to the same presumptions as bilateral hearing loss. See Fountain v. McDonald, No. 13-0540, (Vet. App. February 9, 2015). 

A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). More recently, the court held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007).

As explained below, however, the Veteran does not have a current diagnosis of hearing loss.

In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Under 38 C.F.R. § 3.159(a)(2) (2013), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. 

However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of hearing or respiratory disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).
The Board must also assess the credibility, and probative value of the evidence of record in its whole. In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498, 511. In determining the probative weight, a medical opinion will be considered more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. See Nieves-Rodriguez, 22 Vet. App. 295. 

When there is an approximate balance of positive and negative evidence regarding the determination of a matter, VA shall give the benefit of the doubt to the claimant. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2014). 

In addition to the above principles of service connection, for 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 (2013). See also Hensley v. Brown, 5 Vet. App. 155 (1993). 

The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. 

Here, service treatment records do not show treatment for, complaints of, or symptoms regarding BHL. His military occupational specialty (MOS) was Tactical Network Specialist. At separation from active duty in 2006, the Veteran denied hearing loss on his report of medical history (RMH). His March 2009 RMH for Reserve duty records show that he denied BHL again. His usual occupation was listed as network engineer. The August 2011 VA examination notes that he had marksmen and machine gun experience in service.  Overall, the evidence is at least in equipoise as to in-service noise exposure and thus such acoustic trauma is conceded as consistent with the types and circumstances of his service.  38 U.S.C.A. § 1154(a).  However, the evidence fails to establish a current hearing loss disability and fails to relate tinnitus to in-service noise exposure and thus the claim of service connection fails on these bases.  

At a March 2010 VA primary care appointment (the same month he filed his claim), the Veteran denied blast exposures in service within 50 yards. He reported tinnitus occasionally, no with no BHL known. At a VA audiology consultation appointment the same month, the Veteran reported difficulty hearing in some situations and told the audiologist that in-service he was around weapons (noting marksman, gunner, rifleman, and/or infantry experience) and was 50 to 100 meters away from an improvised explosion device (IED) without any injury. He had tinnitus daily for a few minutes. Sensitivity testing stated that he has slight notching which the audiologist said would support exposure to hazardous noise but he had normal hearing bilaterally. The impression was tinnitus. At a VA psychological appointment the same month, the Veteran clarified his MOS was communications, and that he worried about IEDs when in a convoy, but none exploded while he was there. 

A May 2010 VA record noted the Veteran's report of seeing combat in Iraq.  In another report that same month, when asked about possible stressors related to combat, he described flipping his car prior to deployment and describing overcoming fear to check a car for explosives at a checkpoint. There was no evidence of exposure to acoustic trauma via combat. 

In February 2012, the Veteran was afforded a VA examination. The examination report shows no hearing loss for VA purposes. No threshold measurement was above 15. Speech discrimination score was 100 percent in both ears. He had completely normal hearing.  He reported tinnitus, but the examiner gave a negative nexus opinion because it was not reported in service, and because distortion product otoacoustic emissions (DPOAEs) were present, which suggested normal outer hair cell function. It was noted his MOS was not one which supported a high probability of noise exposure. 

In his claim, the Veteran stated that he had ringing in his ears and that he was trained as a machine gunner and that he was exposed to acoustic trauma in Iraq. In May 2012, a notice of disagreement showed that the Veteran asserted that while his MOS did not expose him to a loud environment, he was exposed to loud noises while deployed. He had no exposure to loud noise since service. In his February 2013 appeal, he noticed ringing prior to separation, but did not report it as he expected it to subside. 

The Veteran is competent to describe his difficulty hearing, which he can perceive, but hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing. Savage v. Gober, 10 Vet. App. 488 (1997). 

The Board finds that the evidence does not show that the Veteran has a hearing loss disability for VA compensation purposes. See Brammer, 3 Vet. App. at 225. Because there is no bilateral hearing loss disability for VA purposes, consideration of the disorder as a chronic disability under Walker is not warranted. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An essential element of the claim is missing. Shedden, 381 F.3d at 1167. 

The Veteran is also competent to report that he has ringing in his ears or tinnitus, as such an observation is within his experience. 38 C.F.R. § 3.159(a)(2). Additionally, he may report noise exposure in service and combat experience. 

Regarding the February 2012 VA opinion given, the Board assigns this a high probative value.  Indeed, the examiner reviewed the record, interviewed the Veteran, and performed an audiological examination consistent with VA guidelines. The Board finds the VA opinion to be the most competent piece of evidence in the file as it is directly on point and fully explanatory. See Nieves-Rodriguez, 22 Vet. App. 295.  It is consistent with a review of the service treatment records which showed no hearing loss for VA purposes at any time or complaints, treatment or symptoms of tinnitus.  The March 2010 VA audiologist, while acknowledging some notches consistent with hearing loss, also noted that the Veteran had normal hearing.  The audiologist did not provide a nexus opinion regarding tinnitus and service.  The VA opinion shows there is not a medically sound basis to attribute the post-service findings to an injury in service. Hensley, 5 Vet. App. at 159.

Even assuming that acoustic trauma did occur in service, a clear preponderance of the evidence is against a finding that tinnitus had its onset in service or is otherwise related to active duty. The Veteran does not have BHL. The benefit of the doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claims, and these claims must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 







ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied. 



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs