Citation Nr: 1602430 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 11-30 616 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Reddington INTRODUCTION The appellant is a Veteran who served on active duty from May 1975 to May 1978 and from May 1978 to August 1979. The latter discharge was under other than honorable conditions; however, a May 2012 VA Administrative Decision found the service honorable, and not disqualifying for VA compensation purposes. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2011 (tinnitus) and July 2012 (hearing loss) rating decisions by the Houston, Texas VA Regional Office (RO). In October 2015, a videoconference hearing was held before the undersigned; a transcript is associated with the record. FINDINGS OF FACT 1. A hearing loss disability in either ear is not shown at any time during the pendency of the instant claim. 2. Tinnitus was not manifested in, or in the first year following the Veteran's discharge from, service, and the preponderance of the evidence is against a finding that his current tinnitus is related to his service/noise trauma therein. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). 2. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. By correspondence in June 2011 and June 2012, VA notified the Veteran of the information needed to substantiate the claims of service connection for bilateral hearing loss and tinnitus, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. He has had ample opportunity to respond, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice medical records are associated with the record. The RO arranged for a VA audiological examination in July 2011 and an addendum opinion was provided in August 2011. The Board finds that the report of the examination and addendum (cumulatively) are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examination was thorough; and the opinions offered, cumulatively, include adequate rationale that cites to supporting factual data. The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. During the October 2015 hearing, the undersigned identified the issues on appeal and focused on the elements necessary to substantiate the claims. A deficiency in the conduct of the hearing is not alleged. The Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including sensorineural hearing loss (SNHL) and tinnitus (as organic diseases of the nervous system)), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for organic diseases of the nervous system) following discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as deemed appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran alleges that he has bilateral hearing loss and tinnitus due exposure to noise in service. He has stated that following service he worked in housekeeping and was exposed to only a minimum amount of noise. His service personnel records show that he served as a Hercules Missile Crewman, and based on the duties associated with that occupational specialty, it may reasonably be found that he was exposed to hazardous levels of noise in service (as the RO has conceded). The Veteran's STRs, including the report of his August 1979 service separation examination, are silent for complaints, treatment, or diagnosis of hearing loss or tinnitus. Notably, on August 1979 separation report of medical history, he denied hearing loss and any ear trouble. A September 2009 audiology note indicates that the Veteran reported decreased hearing in the left ear since Basic Training. Hearing testing showed normal hearing in the right hear to 3000 Hertz and mild to moderate sensorineural loss above 3000 Hertz. Testing also showed normal hearing in the left ear to 2000 Hertz and mild to moderately severe sensorineural loss above 2000 Hertz. In October 2009, an assessment of hearing impairment was made. A July 2011 treatment record notes decreased hearing on the left side. On July 2011 VA audiological examination, the Veteran reported constant bilateral tinnitus and bilateral hearing loss with onset in the military. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 25 30 LEFT 25 25 25 35 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 100 percent in the left. The diagnosis was normal hearing through 3000 Hertz in the right ear progressing to mild SNHL at 4000 Hertz and normal hearing through 2000 Hertz in the left ear progressing to mild SNHL at 3000-4000 Hertz. The examiner opined that the Veteran's hearing loss and tinnitus were less likely than not caused by or a result of military noise exposure, and explained that the Veteran's current hearing loss did not exceed hearing loss that would be expected for his age and also noted that there is a lack of specific acoustic trauma at onset and instead the Veteran has provided only a non-specific generic timeline of onset ("during the military"). In an August 2011 addendum opinion, the provider noted that a review of the record including the Veteran's STRs found that all service audiometry, including at separation, showed normal hearing, bilaterally. The provider also noted the audiometry conducted by VA in July 2011 and opined that the Veteran's current hearing loss does not exceed hearing loss that would be expected for age-related hearing loss. The provider opined that the Veteran's tinnitus is at least as likely as not related to his hearing loss, but that neither hearing loss nor tinnitus is due to service in the military. Bilateral Hearing Loss Hearing loss disability is defined by regulation. For the purpose 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, 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. The threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Hearing loss disability for VA compensation purposes is defined in 38 C.F.R. § 3.385; no audiometry during the pendency of the instant claim has found the Veteran to have a hearing loss disability as defined in 38 C.F.R. § 3.385 in either ear. Notably, the July 2011 VA audiometry conducted specifically in conjunction with the instant claim did not show a hearing loss disability. The record as it stands simply does not show that the Veteran currently has a hearing loss disability in either ear. The Board has considered the Veteran's lay statements to the effect that he has a hearing loss disability. Although he is competent to observe he has difficulty hearing, the diagnosis of a hearing loss disability cannot be established by lay self-observation because such diagnosis is established by audiometric testing in accordance with regulatory criteria. The preponderance of the evidence is against a finding that the Veteran now has (or at any time during the appeal period has had) a hearing loss disability in either ear. Consequently, he has not presented a valid claim of service connection for such disability. See Brammer, 3 Vet. App. at 225. Accordingly, the appeal in this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Tinnitus The Veteran alleges that he has tinnitus due to noise exposure in service. It is not in dispute that he now has tinnitus; it is a disability established by lay observation (by the person experiencing it), and generally is not capable of objective confirmation. It is also not in dispute that he was exposed to noise in service by virtue of his duties as a Hercules Missile Crewman. However, as tinnitus was not noted in service or in the first postservice year, service connection for such disability on the basis that it became manifest in service and persisted or on a presumptive basis (as an organic disease of the nervous system) is not warranted. Notably, in an August 1979 report of medical history on separation, the Veteran denied a history of any ear/hearing problems. While more recently he appears to be alleging that the tinnitus began during service and has persisted since, those allegations are unsupported by contemporaneous evidence, which is silent regarding tinnitus until 2011, more than 30 years after his separation from service. The question remaining is whether, in the absence of onset in service and continuity since, the Veteran's tinnitus may otherwise be related to his service; that is a medical question. The only medical opinions in the record directly addressing this question are by the July 2011 VA examiner and the August 2011 VA opinion provider, both of whom found that the Veteran's tinnitus is unrelated to his service, and provided alternate rationale that cited to factual findings. Because the providers are medical professionals (whose expertise the Board has no reason to dispute), expressed familiarity with the record, and cited to the factual record, including the Veteran's STRs, the opinions are the most probative evidence in this matter. There is no competent evidence to the contrary, and the Board finds them persuasive. Regarding the proposed secondary service connection theory of entitlement, as the Veteran has not established service-connection for hearing loss, that theory of entitlement lacks legal merit. See 38 C.F.R. § 3.310. The Board has considered the Veteran's own statements that relate his tinnitus to his service. However, as was noted above, whether or not a current tinnitus is related to remote service/events therein, is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation (other than by observation of continuity of complaints, which the Board has found is not shown). See Jandreau, 492 F.3d at 1372. The Veteran has not presented any competent (medical opinion/textual) evidence supporting his allegation that his current tinnitus is etiologically related to his service. His unsupported opinion in this matter is not competent evidence. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply. The appeal in this matter must be denied. ORDER Service connection for bilateral hearing loss and tinnitus is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs