Citation Nr: 1526293 Decision Date: 06/22/15 Archive Date: 06/30/15 DOCKET NO. 11-11 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1963 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2015, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Additional evidence was added to the claims folder in April 2015, and a waiver of consideration of that evidence by the RO was secured in April 2015. 38 C.F.R. § 20.1304 (2014). FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, tinnitus is causally related to noise exposure during active service. 2. Bilateral hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, nor is bilateral hearing loss otherwise related to such service. CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154, 3103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Adequate notice was provided in June 2009. The claims file includes service treatment records (STRs), VA medical records, and the statements of the Veteran in support of the Veteran's claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. The Veteran was afforded a VA audiometric examination in September 2009. The Board finds that the VA examination was adequate as the examiner reviewed the claims folder, considered the Veteran's history and the current examination results, and provided rationales for the opinions offered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, no further notice or assistance to the appellant is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Criteria The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). For some "chronic diseases," (such as high frequency sensorineural hearing loss) presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. 38 U.S.C.A. § 5107(b). III. Tinnitus Service treatment records are silent for reference to tinnitus. Tinnitus was diagnosed upon VA examination in September 2009. At the time, the Veteran reported a history of noise exposure during service. The examination report notes that tinnitus has been "present for 3 years of unknown circumstance of onset." The examiner opined that it is less likely that the Veteran's complaint of tinnitus is related to his history of military noise exposure. However, at the Board hearing, the Veteran testified that he has been experiencing tinnitus for much longer, essentially since service. He also testified to all of the noise exposure he experience in service, including firearms and grenades. During the Veteran's March 2015 hearing, the Veteran testified that he did not experience acoustic trauma after his period of service. Based on the evidence, the Board concludes that the evidence is at least in equipoise and service connection should be granted for tinnitus as being incurred in service. The Veteran has offered competent and credible evidence that he was exposed to loud noises during service. Despite the negative opinion, the VA examiner seems to have not considered the Veteran's claim that tinnitus started much earlier than noted in the examination report. The Board finds that his credible testimony, establishes that the Veteran did have a noise-related event in service. What is left is competent, credible evidence from the Veteran of service onset of tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, service connection for tinnitus is warranted. IV. Bilateral Hearing Loss At the Board hearing, the Veteran testified that he believes his hearing loss was caused from noise exposure in service. He said he first realized he had a condition when family and friends told him he was going deaf. He indicated that he started receiving treatment from VA four years prior, including getting hearing aids. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The record reflects that the Veteran currently has bilateral hearing loss that meets the regulatory thresholds to be considered disabling. An audiometric evaluation was performed by the VA examiner at the September 2009 examination. The remaining question is whether the current bilateral hearing loss is related to his service. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. The available service treatment records are silent for hearing loss. A whisper test was performed at the entrance examination in April 1963 and noted normal results. The April 1967 separation examination showed that the Veteran's hearing sensitivity remained within normal limits. The VA examiner noted that hearing was normal to calibrated audiometries during the separation examination. The VA examiner noted that the Veteran's hearing was within normal limits at entrance and separation. Per Hensley, this may not be the sole basis for a denial. However, the examiner went on to note that the Veteran's service treatment records were silent for hearing loss. The examiner provided the following opinion: "It is the opinion of this examiner that it is less likely as not that Veteran's current hearing loss [is] a result of noise exposure while in the service with subsequent hearing loss/tinnitus from unprotected occupational noise exposure and other medical conditions...as possible contributing factors." The post-service occupational exposure was noted in the report to have been when the Veteran worked as an arson investigator for the fire department. The Veteran denied noise exposure as a result of that job at the Board hearing. There are VA treatment records that document the Veteran's hearing loss. However, no history or etiology of the Veteran's hearing problems are provided in those treatment records. Further, the earliest mention of hearing loss is in 2009. There are VA treatment records dating to 2006; however, hearing loss is not mentioned as a condition and there are no complaints until 2009. The Veteran testified that he first saw a doctor about his hearing 12 years ago in Florida. At the recent Board hearing, he indicated that he would attempt to provide that medical evidence. The record was held open for a period of time to allow him to do so. The medical evidence subsequently provided after the Board hearing was dated in 2012. When submitting the medical evidence, the Veteran wrote: "The VA clinic in Cape Coral, FL issued my hearing aids in 2012 after the enclosed hearing test, I find myself depending more and more on these aids, and I am due for a retest." There is no mention of earlier records. Based on his submission, the Board concludes that there are no other medical records that would assist in deciding this issue and that the treatment records concerning the Veteran's hearing loss are all dated after 2009 and do not offer any evidence the hearing loss is related to noise exposure in service. The Board also considered the Veteran's lay statements because he is competent to describe his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, hearing loss could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Further, the first documented medical record of hearing loss was more than four decades after the Veteran left the service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, over 40 years separate service from treatment and diagnosis. There is no competent evidence of record which provides a link between the Veteran's active duty service and hearing loss. After thorough review of the evidence currently of record, the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs