Citation Nr: 1515271 Decision Date: 04/09/15 Archive Date: 04/21/15 DOCKET NO. 10-17 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from October 1956 to October 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, in which the RO denied the Veteran's claims of service connection for hearing loss and tinnitus. In December 2014, the Veteran was notified of the time and place of a Board hearing he had requested in connection with his appeal. See 38 C.F.R. § 20.704(b) (2014). He failed to report for the hearing, however, and no request for postponement was ever received. Accordingly, the Board will process his appeal as though the request for hearing had been withdrawn. 38 C.F.R. § 20.704(d). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Hearing loss was not demonstrated in service or within one year of separation from service; current hearing loss is not attributable to military service. 2. Tinnitus was not demonstrated in service or within one year of separation from service; current tinnitus is not attributable to military service. CONCLUSIONS OF LAW 1. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2014). 2. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2014). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through a November 2008 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claims. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. The Board also finds that the November 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned November 2008 notice letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the November 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have records of post-service treatment he has received from both private and VA treatment providers. The Veteran also underwent VA examination in September 2010; report of this examination is of record. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the examination obtained in this case is sufficient, as it is predicated on consideration of the VA medical records in the Veteran's claims file, as well as specific examination findings. The examiner considered the Veteran's statements and provided a rationale for the findings made, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran and his representative have both submitted written argument in support of his claims. Neither the Veteran nor his representative has alleged that there are any outstanding records probative of the claims on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Service connection may also be granted for any injury or disease diagnosed after service, 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). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). If an organic disease of the nervous system, such as sensorineural hearing loss or tinnitus, becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from qualifying service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). For the purposes of applying the laws administered by VA, impaired hearing is 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; or when the auditory thresholds for at least three of those frequencies 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 (2014). The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the appellant's in-service exposure to loud noise and current disability. The Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Here, the Veteran contends that he experiences hearing loss and tinnitus that are attributable to noise exposure while serving on active duty. First, the Board notes that VA audiology examination conducted in September 2010 shows a current hearing loss disability for VA purposes, as well as a current diagnosis of tinnitus. 38 C.F.R. § 3.385. The Veteran served on active duty from October 1956 to October 1958 as a machine accounting specialist, and he has stated on multiple occasions that he was exposed to noise during service, including in particular the loud operational noises of the computer machines he worked with during while on active duty. The Board has no reason to question the Veteran's credibility with respect to his duties in service or his exposure to noise therefrom. Accordingly, in-service noise exposure is conceded. Relevant medical evidence consists of service treatment records as well as records of the Veteran's post-service evaluations and report of VA examination conducted in September 2010. Review of the service treatment records reflects that at his October 1956 entrance examination and July 1958 separation examinations, whisper voice testing was 15/15 bilaterally. He did not complain of and was not treated for any problems with his hearing or tinnitus while in service. Post-service treatment records from a private audiologist the Veteran has seen since at least 2005 reflect diagnoses of hearing loss and tinnitus, although the Veteran reported at a July 2005 treatment visit that the tinnitus had begun only six months prior. In the records, the private audiologist acknowledged the Veteran's in-service noise exposure but offered no opinion as to the etiology of the Veteran's hearing loss or tinnitus. The Veteran has also submitted multiple statements from family members and friends attesting to his current difficulty hearing, as well as multiple statements in which he asserts that his hearing loss and tinnitus developed as a result of exposure to noise from computer machines he worked with while in service. The record also contains reports from a September 2010 VA examination, which reflects that the VA audiologist reviewed the claims file and conducted audiometric testing, which revealed bilateral hearing loss under 38 C.F.R § 3.385. The examiner noted the Veteran's contention that he had been exposed to noise from large computer machines he worked with during service. The Veteran also reported tinnitus, which he stated began five years prior. The examiner diagnosed bilateral sensorineural hearing loss and tinnitus. Acknowledging the Veteran's reported exposure to noise while in service, the examiner nevertheless concluded that it was not at least as likely as not that current hearing loss or tinnitus resulted from the acoustic trauma the Veteran suffered in service. She reasoned that his hearing loss was due instead to "chronic middle ear infections over the years," pointing out that he had demonstrated middle-ear pathology only since 2005 and had had a normal whisper-voice test at his 1958 separation from service. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for hearing loss and tinnitus. The Board concedes that VA examination confirms that the Veteran currently suffers from hearing loss and tinnitus. The Board concludes, however, that the greater weight of the evidence is against the claims. Here, even conceding the Veteran's exposure to noise while in service, the VA examiner found no link between any current hearing loss or tinnitus and military service based on the record. Noting that the evidence did not show any hearing loss or tinnitus at the Veteran's separation from active duty, the VA examiner gave as her medical opinion that it was not at least as likely as not that any current hearing loss or tinnitus was related to the Veteran's military service. Additionally, there is no medical evidence suggesting that sensorineural hearing loss or tinnitus became manifest to a compensable degree within a year of the Veteran's separation from military service. 38 C.F.R. §§ 3.307, 3.309. Furthermore, the Board finds persuasive the absence of probative medical evidence showing a nexus between the Veteran's service and current hearing loss or tinnitus. In that connection, the Board notes that the medical opinion submitted by the VA examiner acknowledged the Veteran's complaints of in-service noise exposure but nonetheless concluded that it was less likely than not that the Veteran's current hearing loss or tinnitus was in fact due to in-service exposure to noise or otherwise related to service. In so finding, the examiner looked to the Veteran's lack of in-service complaints of hearing loss or tinnitus, as well as the many years that passed since service separation with no such complaints and his history of chronic middle-ear infections since 2005, in finding that any current hearing loss or tinnitus was not likely related to service. In this case, the strongest evidence is the medical evidence from the September 2010 VA examiner's opinions, which are based on the Veteran's reported history, the medical records, and the examiner's medical expertise and current medical knowledge. In arriving at her negative opinions, the September 2010 VA examiner considered the Veteran's contentions regarding the etiology of his hearing loss and tinnitus. The examiner nevertheless concluded that the Veteran's current hearing loss and tinnitus are not likely related to service, including to in-service noise exposure. The September 2010 VA examiner provided reports that considered the Veteran's history, set out her findings in detail, and contained clearly articulated reasons for her conclusions. Thus, the Board relies upon the September 2010 VA examiner's opinion in making its determination. As discussed above, the VA examination specifically addressed causation, clearly indicating that the Veteran's current hearing loss and tinnitus are not likely related to his time in service. For these reasons, the Board concludes that the September 2010 VA examiner's opinions are the most probative evidence of record. The Board has also considered the Veteran's contention that a relationship exists between his current hearing loss and tinnitus and his noise exposure experienced during service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that 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. See 38 C.F.R. § 3.159(a)(2) (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). In this capacity, the Board finds the Veteran is competent to attest to noise exposure he experienced during service, and concedes that the Veteran had noise exposure during his period of active service. However, the Veteran is not competent to provide an opinion that his current hearing loss and tinnitus are due to his in-service noise exposure, as he does not have the requisite medical expertise. Although it is conceded that he had noise exposure during service, the fact remains that he made no complaints of hearing loss or tinnitus during service, and hearing loss and tinnitus were not shown until decades after separation from service. The September 2010 VA examiner was aware of the Veteran's in-service noise exposure but nevertheless concluded that his hearing loss and tinnitus were not due to service. The Veteran's contentions are outweighed by the medical evidence and opinions of the VA medical examiner, which reflect that his hearing loss and tinnitus are not due to noise exposure in service. Relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking the current disability to service. The Board is satisfied that the VA examiner's opinions are adequate for deciding this appeal. The VA examiner's September 2010 medical opinions, which are based on the entire record, including the Veteran's own history, is that hearing loss and tinnitus are not at least as likely as not related to military service. Importantly, the Board notes that there is no medical evidence of record to support the Veteran's contention that his current audiological difficulties are linked to his in-service noise exposure. Because the VA examiner's opinions outweigh evidence in favor of the claims, and in light of the foregoing analysis and the underlying facts, the Veteran's service connection claims for hearing loss and for tinnitus must be denied. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs