Citation Nr: 1602209 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 11-12 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. The matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested that he be afforded a personal hearing before a Veterans Law Judge at the RO. However, after being scheduled for such a hearing, he provided a statement in August 2015 wherein he explicitly stated that he did not want to appear for Board hearing. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record is against a finding that any current bilateral hearing loss disability was incurred in or related to active service. 2. The preponderance of the competent and credible evidence of record is against a finding that any current tinnitus disability was incurred in, related to, or proximately due a service-connected disease or injury incurred in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated March 2010, April 2010, November 2010 and March 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent March 2011 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Board notes that the Veteran's private physician, Dr. F., alludes to an unidentified audiogram. The VA sent a request to the Veteran and to Dr. F. in March 2010 for all treatment records, findings, diagnoses and sources of existing private medical evidence or testing for hearing loss and tinnitus since service. Neither has responded. The VA obtained an examination with respect to the claims on appeal. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination report is thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information and rationale necessary to evaluate his claims for service connection. VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The United States Court of Appeals for Veterans Claims (Court) held that tinnitus, "at a minimum where there is evidence of acoustic trauma," is also a chronic disease under 38 C.F.R. § 3.309(a), "as an 'organic disease[] of the nervous system.'" Fountain v. McDonald, No. 13-0540 (U.S. Vet. App. Feb. 9, 2015), slip op. at 18. Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For presumptive chronic diseases, to include sensorineural hearing loss and, now, tinnitus, an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (for tinnitus, a Veteran is competent to present evidence of continuity of symptomatology). Service connection may also be granted on a secondary basis for a disability which is proximately due to, the result of, or aggravated by, a service-connected disability. Secondary service connection includes instances in which a service-connected disability results in additional disability of another condition by means of aggravation. 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must identify the evidence it finds to be persuasive or unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). That includes both medical evidence and lay evidence. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Hearing Loss Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2015). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Competent evidence of a current hearing loss disability 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 v. Brown, 5 Vet. App. 155 (1993). The Veteran's service treatment records (STRs) show normal hearing levels in both the induction and separation examinations. The Board notes that the Veteran's induction examination only contains a whisper test showing normal hearing. The Veteran's November 1969 separation examination noted the following audiometric testing results: Hertz (Hz) 500 1000 2000 3000 4000 Average Right Ear -10 -10 -5 - -10 -6.25 Left Ear 10 -5 -10 - 5 -2.50 An April 2010 VA audio examination shows the audiometric testing results were as follows: Hertz (Hz) 500 1000 2000 3000 4000 Average Right Ear 0 15 60 50 50 43.75 Left Ear 10 10 20 50 50 32.50 The VA examiner reviewed the Veteran's STRs and military, occupational and recreational noise exposure history and concluded that the Veteran's current hearing loss is less likely than not related to his military noise exposure. In support of this opinion, reference was made to the Veteran's report that his hearing loss had existed for over fifteen years (in a preceding October 2009 VA audiological evaluation, the Veteran stated his hearing had been declining for the past twenty five years). The examiner also noted that the Veteran had normal hearing sensitivity in both ears upon discharge from the military in 1969. In support of his claim, the Veteran produced a favorable February 2010 private medical report. Dr. S. opines that the Veteran's audiogram showed significant hearing loss and that it is likely due to the Veteran's noise exposure in the military. No rationale was provided. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Medical opinions have no probative value when they are based on an inaccurate factual predicate. Reonal v. Brown, 5 Vet. App. 548 (1993). The Board finds that the April 2010 VA audio examination is the most probative evidence of record. There is no indication in the February 2010 private medical report that Dr. S. reviewed the Veteran's claims file. Such is not a fatal flaw. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). However, as highlighted by the VA examiner, the claims file revealed that the Veteran had normal hearing on separation audiometric testing, and that the Veteran provided conflicting statements (medical history) with respect to the onset of his hearing loss. The opinion from Dr. S. also lacked any supporting rationale. By contrast, the VA examiner provided a clear explanation for the negative opinion. In addition, the credible and competent evidence of record does not show continuity of symptomatology of hearing loss since service. There is no medical or lay evidence of hearing loss during service or during the applicable presumptive period, nor is there a showing of continuity of symptomatology of hearing loss after service. The Veteran's past statements indicate that his hearing loss began, at most, twenty five years ago (almost two decades post-service). The record also includes private medical records relating to the Veteran's claim for a heart condition. Included in these private medical records is a March 2008 medical report stating that the Veteran denied having decreased hearing at that time. Consequently, the Board finds that the Veteran is not a reliable historian. If it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for hearing loss and service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015). Tinnitus The STRs are negative for treatment or diagnosis of tinnitus during active service. However, in February 2010 the Veteran submitted a statement in support of claim in which he states he has had ringing in his ears "ever since the service." He is competent to make such statements. Charles v. Principi, 16 Vet. App. 370 (2002). However, while the Veteran is competent to attest to noise exposure in service and to attest to the presence of tinnitus, as a lay person, it has not been shown that he had specialized training sufficient to determine the etiology of tinnitus. Tinnitus can have various etiologies, such as acoustic trauma, head trauma, diseases, ototoxic drugs, etc. Thus, the etiology of tinnitus requires medical expertise to determine. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Veteran's lay opinion on the etiology of tinnitus is not competent medical evidence. The Board finds the medical opinion rendered by the VA examiner (who opined that the Veteran's recurrent bilateral tinnitus is less likely than not related to his military noise exposure) to be significantly more probative than the Veteran's lay assertions. Indeed, even his personal physician, linked the Veteran's tinnitus to his hearing loss as opposed to his noise exposure. The Veteran's assertion that his tinnitus has existed since service (continuity of symptomatology) is not found to be credible. The claims file includes private medical records relating to the Veteran's claim for a heart condition. Included in these records is a March 2008 medical report stating that the Veteran denied having tinnitus at that time. Moreover, at an April 2010 VA audio examination, the Veteran placed the onset of his tinnitus at one and a half years prior to that examination. Further, to the extent the Veteran's tinnitus has been associated with hearing loss, service connection for hearing loss has not been established. There is no legal basis upon which to award service connection for tinnitus on a secondary basis.. In sum, the Board finds that the Veteran is not a reliable historian as to the onset of his tinnitus and the credible and competent evidence of record does not show continuity of symptomatology of tinnitus since service. 38 C.F.R. §3.303(b) (2015). Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for tinnitus and service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs