Citation Nr: 1513838 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 11-27 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran has active duty in the United States Army from October 1967 to June 1970. The case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Regional Office (RO) in Sioux Falls, South Dakota. Specifically, a January 2006 rating decision, which denied service connection for bilateral hearing loss, and a January 2011 rating decision, which denied service connection for tinnitus. The Board re-opened the claim for service connection for bilateral hearing loss by decision dated March 2014. During the pendency of this appeal, VA granted the Veteran service connection for posttraumatic stress disorder, therefore, while this issue was certified to the Board, it is no longer on appeal. The Veteran had a hearing before a Decision Review Officer (DRO) at the Regional Office in August 2011. A transcript of that proceeding has been associated with the claims file. The Board remanded this matter in March 2014 and it is again before the Board. The remand provided that the RO attempt to obtain certain medical treatment records and that the Veteran be afforded examinations for his claimed hearing loss and tinnitus disabilities, and these remand instructions were properly followed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board observes that in March 2014, the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) was also remanded. VA's Appeals Management Center (AMC) awarded service connection for this disability in December 2014. This constitutes a full grant of benefits sought with this claim. Accordingly, it is not before the Board. The AMC assigned an initial 10 percent rating for this disability. In March 2015, the Veteran's representative submitted a statement asking for reconsideration of the disability evaluation assigned. This matter is referred to the Agency of Original Jurisdiction (AOJ) for further action. The Board has reviewed the Veteran's Virtual VA and Veteran's Benefits Management System paperless claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a bilateral hearing loss disability that is etiologically related to a disease, injury, or event which occurred in service. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral tinnitus disability that is etiologically related to a disease, injury, or event which occurred in service. CONCLUSIONS OF LAW 1. Service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014). 2. Service connection for a bilateral tinnitus disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (the Board must review the entire record, but is not required 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 claims. 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) (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 claims, 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 2014); 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 representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); 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 claims; (2) that VA will seek to provide and (3) that the Veteran is expected to provide. In this case, a November 2005 VCAA letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio, 16 Vet. App. at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support the claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter further explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. 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). The Veteran was provided VA examinations for his claimed bilateral hearing loss and tinnitus last in May 2014, and VA audiology examinations were conducted in November 2005 and December 2010. The examiners took into account the Veteran's reported history, his current symptoms, and review of the available private and VA treatment records, and conducted appropriate diagnostic, audio tests. Therefore, the Board finds the examination report to be thorough and complete and sufficient upon which to base a decision with regards to the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). 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). Hearing Loss Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet App 155, 159 (1993). In this case, the RO has conceded that the Veteran was exposed to acoustic trauma during service. Further, the VA examinations conducted have established that the Veteran suffers from a current bilateral hearing loss disability-bilateral sensorineural hearing loss-as described in 38 C.F.R. § 3.385. Thus, the question before the Board is whether the Veteran's bilateral hearing loss is more likely than not incurred in or aggravated by his military service; the Board must conclude it is not, as there is no medically sound basis for attributing his hearing loss to service. At the onset, the Board notes that the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a bilateral hearing loss disability . The September 1967 enlistment examination audiogram showed that the Veteran had normal hearing sloping to moderate hearing loss in the right ear, and normal hearing in the left ear, and the June 1970 separation examination showed hearing within normal limits in both ears. The Veteran has provided a September 1969 letter indicating that he was exposed to military noise exposure during service and documenting his concern about his ears being affected. The Veteran's wife also provided an October 2010 statement in which she relayed that she thought the Veteran's hearing was negatively impacted by his service. She noted that what the Veteran had told her about his military noise exposure and stated that his hearing had worsened over time since she first met the Veteran over 40 years ago. During an August 2011 hearing before the Decision Review Officer (DRO) at the RO, the Veteran's wife testified that she had reviewed the Veteran's entrance and separation audiograms, and she contended that there was something wrong with the examinations because the audiograms showed that the Veteran's hearing had improved during service despite his eight years of military noise exposure. During the hearing, the Veteran testified that he first recognized his hearing loss in approximately 1970, but reported that he first received a hearing test outside VA in 2009 at Sanford Health when he was missing conversations over the telephone. The Veteran was afforded VA audiology examinations in November 2005 and December 2010 in connection with his bilateral hearing loss and tinnitus claims. The VA examiners found it less likely than not that the Veteran's bilateral hearing loss and tinnitus were etiologically related to his service, apparently basing their opinions on the lack of medical evidence of hearing loss in service. The March 2014 Board remand ordered a new VA examination, noting that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. As such, a VA examiner reviewed the Veteran's claims file and produced a report dated May 2014. The examiner opined that pre-existing right ear hearing loss was not aggravated beyond normal progression in military service. The examiner further opined that is less likely than not that the Veteran's bilateral hearing loss is related to his active military service. The examiner stated: "Hearing was documented to be normal in both ears at separation from service; this would suggest onset occurred after military service. Research has indicated that onset of conditions such as hearing loss and tinnitus that result from acoustic trauma occur at the time of the acoustic insult and do not typically present with a delayed onset." Specifically, the examiner noted that a significant shift in hearing acuity consistent with acoustic trauma during service was not found, and additional noise exposure, aging and health conditions occurring outside of military service cannot be ruled out as possible contributing factors to the Veteran's current hearing loss. The examiner submitted an additional addendum opinion dated October 2014 after private medical records were received and associated with the file. The examiner stated: "Review of the additional medical evidence does not change the previous [] opinion regarding hearing loss and tinnitus rendered in [May 2014]." The examiner cited medical literature, stating: According to the Noise and Military service committee which is used by the Department of Veteran's Affairs and the 2006 Institute of Medicine's "Noise and Military Service, implications for hearing loss and tinnitus" text, regarding delayed onset, "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss as there is no competent medical evidence of record linking his hearing loss with his service. The Board fully appreciates the evidence of record supporting the Veteran's claims, especially the September 1969 letter documenting noise exposure and concerns about his hearing, the October 2010 statement from the Veteran's wife, and the Veteran and his wife's August 2011 testimony. The September 1969 letter in particular supports that the Veteran was exposed to acoustic trauma in service, but as noted above, the RO has conceded noise exposure already. This letter does not establish that he had a hearing loss disability during service or that any preexisting hearing loss was aggravated during service. The Veteran and wife's statements are insufficient to link the Veteran's service with his hearing loss, as they are not competent to opine as to such. With respect to the Veteran and his wife's contentions that there is a positive nexus between the hearing loss and service, crucially, lay persons are not competent to opine as to medical etiology or render medical opinions as to hearing loss. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Degmetich v. Brown, 104 F.3d 1328 (1997). As a layperson, the Veteran and his wife are not competent to render a medical opinion linking the Veteran's hearing loss with his service. The Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). To this effect, the Board acknowledges that the Veteran testified that he first recognized his hearing loss in approximately 1970. The Veteran's wife testified that she witnessed his hearing progressively worsen since service. However, while the Board weighs the Veteran and his wife's statements, the Board weighs the March 2014 VA examiner's opinion that the Veteran's current hearing loss is not linked with his service more heavily, as it was rendered by a medical professional and as such is competent medical evidence. Further, the Board notes that the Veteran had an indication of moderate hearing loss in the right ear upon entering service, while the June 1970 separation examination showed hearing within normal limits in both ears. The Veteran testified during the hearing that despite his claimed hearing loss since service, he first sought private treatment for such in 2009, and received a VA examination for such in 2005. Finally, the Board notes a September 2009 letter written by S.B., private audiologist, in which he notes that the Veteran has been experiencing hearing difficulty "the last few years." While not dispositive, these facts support that the Veteran's hearing trouble may have indeed had its onset decades after service. The Board acknowledges the VA examinations in November 2005 and December 2010, in which the VA examiners found it less likely than not that the Veteran's bilateral hearing loss and tinnitus are etiologically related to his service, apparently basing their opinions on the lack of medical evidence of hearing loss in service. However, the Board does not greatly weigh this evidence, as the Veteran's representative and the Board's March 2014 remand correctly noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. The Board most heavily weighs the May 2014 VA examiner's opinion and October 2014 addendum, both which contain extensive rationale and constitute competent medical evidence. The examiner specifically noted the indication of hearing loss in the Veteran's right ear before service, and stated it was less likely than not that any preexisting hearing loss was aggravated by service, as the record suggests that the hearing loss noted at entrance was temporary and did not persist. The examiner opined that the pre-existing right ear hearing loss was not aggravated beyond normal progression in military service. In part, in stating a negative nexus opinion, the examiner noted that research has indicated that onset of conditions such as hearing loss and tinnitus that result from acoustic trauma occur at the time of the acoustic insult and do not typically present with a delayed onset. The examiner noted that the Veteran's hearing was documented to be normal at separation from service and a significant shift in hearing acuity consistent with acoustic trauma during service was not found. The examiner noted that additional noise exposure, aging and health conditions occurring outside of military service cannot be ruled out as possible contributing factors to the Veteran's current hearing loss, as the Veteran reported some occupational noise exposure working in a lumber yard, building homes and working as a custodian in a school. While the Veteran has presented private treatment records, they support that the Veteran currently suffers from hearing loss, but do not link this present condition with his service. Absent competent and reliable evidence of a claimed hearing loss disability, the Board concludes that the claim of entitlement to service connection for bilateral hearing loss disability must be denied, upon weighing the May 2014 VA examiner's opinion most heavily, as competent medical evidence of record establishing a negative nexus. The preponderance of the evidence is against the Veteran's claim 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. Tinnitus Again, the RO has conceded that the Veteran was exposed to acoustic trauma during service. Further, the VA examinations conducted have established that the Veteran suffers from a current tinnitus disability. Thus, the question before the Board is whether the Veteran's bilateral tinnitus is more likely than not incurred in or aggravated by his military service; the Board must conclude it is not, as there is no medically sound basis for attributing the tinnitus to service. During the August 2011 hearing, the Veteran reported that he first noticed tinnitus within 2 to 3 months after being in service and that the tinnitus has continued since that time but remains intermittent, not constant. A VA examiner reviewed the Veteran's claims file and produced a report dated May 2014. The examiner opined that is less likely than not that the Veteran's tinnitus is related to his active military service. The examiner stated: "Hearing was documented to be normal in both ears at separation from service; this would suggest onset occurred after military service. Research has indicated that onset of conditions such as hearing loss and tinnitus that result from acoustic trauma occur at the time of the acoustic insult and do not typically present with a delayed onset." The examiner submitted an additional addendum opinion, dated October 2014, after private medical records were received and associated with the file. The examiner stated the following: "Review of the additional medical evidence does not change the previous...opinion regarding hearing loss and tinnitus rendered [May 2014]." The examiner noted that the additional medical records included an evaluation completed in 2009 by S.B., Audiologist. His test results documented normal hearing sloping to a moderately severe high frequency hearing loss at the time of that evaluation. Notably, his report documented the Veteran denied experiencing tinnitus as of 2009. Another document of relevance was found in the Veteran's private medical clinic records by Dr. L.S. dated September 2012 which documented Veteran denied tinnitus as of 2012. The Board notes that both private treatment records cited are contained in the claims file and the Board has reviewed them. In this case, the record contains insufficient, credible evidence that the Veteran has tinnitus as linked to service. The Board notes that the RO has conceded in-service noise exposure. Nevertheless, the STRs contain neither the Veteran's lay statements regarding tinnitus nor any medical note or assessment of such. The Board acknowledges and weighs the Veteran's statements that he suffered ringing of the hearing since service, and notes that the Veteran is competent as a layperson to testify to suffering from tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, as the VA examiner notes, the Veteran denied suffering from tinnitus in 2009 and 2012, which impacts his credibility in that regard. See Madden v. Gober, 125 F.3d 1477, 1481 (1997). The Board has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), but has found it not to be applicable as, in this case, there is not an absence of evidence of in-service tinnitus or continuity thereafter, but an explicit denial of ringing in the ears in 2009 and 2012 to two different medical professionals. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a tinnitus disability, as the record weighs against continuity of symptoms since service and there is no competent medical evidence suggesting or establishing a positive nexus. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is no approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss disability is denied. Service connection for bilateral tinnitus disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs