Citation Nr: 1614615 Decision Date: 04/11/16 Archive Date: 04/26/16 DOCKET NO. 08-13 315A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected otitis media. 2. Entitlement to service connection for bilateral tinnitus, to include as secondary to service-connected otitis media. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from November 1987 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a hearing in March 2011 before the undersigned. A copy of the transcript is of record. In May 2011, April 2014, September 2014, and January 2016, the Board remanded this case to the Agency of Original Jurisdiction for further development and it has now been returned to the Board. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss does not constitute a disability for VA purposes. 2. The preponderance of the evidence shows that the Veteran does not have tinnitus due to any incident of active service or that was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service, and is not proximately due to, or the result of, or chronically aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). 2. Bilateral tinnitus was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service, and is not proximately due to, or the result of, or chronically aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty 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); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of 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 any 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 Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran 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 Veteran, 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 November 2005. 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 an 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 representative suggest actual knowledge of the elements necessary to substantiate the claim, as the Veteran has stated that he experiences hearing loss and tinnitus, and that he believes it is the result of exposure to noise in service or due to service-connected otitis media. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 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 Veteran of any evidence that could not be obtained. He has not referred to any additional, unobtained, relevant, available evidence. The Veteran was provided multiple VA examinations, most recently in February 2016. The June 2011, May 2014, November 2014, and February 2016 examinations all yielded invalid audiogram results. The February 2016 examination was adequate because it was based on a thorough examination of the Veteran, a description of his pertinent medical history, a review of the claims file, and the appropriate diagnostic tests. The examiner also provided an adequate opinion and rationale. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, the Board finds that VA has satisfied the duty to assist. 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). This case has been remanded four times. In May 2011, it was remanded to obtain private medical records and provide the Veteran a VA examination. In April 2014 and September 2014, it was remanded to obtain an adequate etiology opinion. In January 2016, it was remanded to obtain additional VA treatment records and to obtain an adequate etiology opinion. All outstanding VA treatment records and private records were obtained on remand, and an adequate VA examination was provided in February 2016. There was substantial compliance with the Board's remand requests. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that the January 2016 remand specifically asked the examiner to reconcile two conflicting November 2014 examinations. Although the February 2016 examiner did not specifically address the reports, the examiner reviewed the claims file and explained why tinnitus was not a permanent complication of otitis media such that the Board may make an informed decision. The Board recognizes this deviation from the remand request, but finds that it is not so significant that a remand is required for correction, as the provided opinion constitutes substantial compliance with the remand request. D'Aries v. Peake, 22 Vet. App. 97 (2008). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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) (2015). To establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2015); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Sensorineural hearing loss is a chronic disease. Tinnitus is considered an organic disease of the nervous system and is thus a chronic disease. 38 C.F.R. § 3.309(a) (2015); Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran asserts that bilateral hearing loss and tinnitus were caused by service-connected otitis media. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2015). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). To establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, the Board must weigh the probative value of the evidence in light of the entirety of the record. When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, reasonable doubt is resolved in favor of the claimant, and the claimant prevails. 38 U.S.C.A. § 5107 (West 2014); 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for the claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Hearing Loss For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2015). The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran underwent a private audiogram in February 2011. Pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 25 25 LEFT 20 20 25 30 30 The Veteran had a speech discrimination score of 92 percent in the right ear and 90 percent in the left ear. However, the report did not state whether the Maryland CNC test was used. Therefore, the February 2011 private audiogram does not show that the criteria set forth in 38 C.F.R. § 3.385 were met. At a June 2011 VA, the examiner stated that the results of audiometric testing were invalid, and explained that pure tone results were obtained with poor reliability, and that the thresholds varied over 20 decibels but did not agree with the speech recognition testing. Additionally, speech recognition could not be reliability obtained. The examiner concluded that the results were inconsistent and unreliable, and therefore the degree of the Veteran's hearing loss could not be determined. At a May 2014 VA examination, again, the audiometric testing was invalid. The examiner found that the degree and configuration of the Veteran's hearing loss could not be determined because his responses were inconsistent and unreliable for both his audiogram and his speech recognition test. The examiner diagnosed normal hearing in both ears. At a November 2014 VA examination, the examiner stated that the test results were invalid because of patient inconsistencies. The examiner explained that all components of the test were not in agreement. Specifically, pure tone test results were not in agreement with otoacoustic emittance measures, nor speech recognition thresholds. The examiner diagnosed normal hearing in both ears. The examiner noted that previous testing had also yielded invalid results. At a February 2016 VA examination, again, the test results were invalid. The examiner noted that the interest consistency was poor. The Veteran's distortion product otoacoustic emissions (DPOAE) test results suggested normal hearing bilaterally at some frequencies in both ears, but the Veteran presented with severe hearing loss in both ears on audiometric examination. The examiner stated that the Veteran was capable of cooperating but did not provide reliable and consistent responses. As a result, his responses were not reported and the examiner diagnosed normal hearing in both ears. The examiner stated that the Veteran consistently presented with inconsistent test results, and that DPOAE testing suggested he had normal hearing in at least several thresholds, calling the Veteran's credibility into question. The examiner explained that DPOAE testing is an objective test and required no response from the Veteran. While a private audiogram in showed speech recognition scores that may have met 38 C.F.R. § 3.385, the Board notes that audiogram does not specify that the Maryland CNC test was used, as required by 38 C.F.R. § 3.385. Therefore, that report is not evidence that the Veteran met the criteria for hearing loss to be considered a disability. In addition, multiple VA examinations have noted a lack of cooperation on the part of the Veteran and have found normal hearing. Therefore, the Board finds that the preponderance of the evidence favors a finding that the Veteran does not have hearing loss that meets the criteria to be considered a disability. 38 C.F.R. § 3.385 (2015). Therefore, the Board finds that hearing loss does not meet the criteria to qualify as a disability for VA purposes. 38 C.F.R. § 3.385 (2015). Service connection for bilateral hearing loss is therefore not warranted. Hensley v. Brown, 5 Vet. App. 155 (1993). Additionally, the medical opinions obtained do not support the Veteran's claim and are therefore not positive evidence. The Board does not question the Veteran's ability to perceive changes in his audiological acuity. However, a grant of service connection for bilateral hearing loss must be predicated on objective testing findings corresponding to the criteria of 38 C.F.R. § 3.385. In this case, absent medical or audiological training, credentials, or other demonstrated expertise, the Veteran is unable to provide a competent lay opinion about whether the specific criteria for an audiological disability for VA purposes were met at any specific point in time. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In addition, the credibility and cooperation of the Veteran have been called into question at VA examinations, further reducing the reliability of his assertions as to the severity of any decrease in hearing acuity. Hence, because the evidence is against a finding that the Veteran currently has bilateral hearing loss to an extent recognized as a disability, there can be no award of service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and service connection for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus The Veteran reports that he has tinnitus, which is a condition that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). There is no evidence of record to show that the Veteran's assertion that he has tinnitus is not credible. Therefore, he has a current disability. The Veteran asserts that during service, he was exposed to noise from grenade explosions and weapons fire during basic training. There is no evidence of record to show that assertion is not credible. Therefore, the Board finds that he was exposed to noise in service. Alternatively, the Veteran asserts that tinnitus was caused or aggravated by service-connected otitis media. However, the evidence of record does not show that his tinnitus is a result of service or that it was caused or aggravated by his service-connected otitis media. At a June 2011 VA examination, the Veteran stated that tinnitus began in service and that he experienced it twice a week. The examiner did not provide an opinion. In August 2011, the June 2011 examiner reviewed the record and stated that an etiology opinion regarding tinnitus was not possible without speculation. The examiner explained that, without a diagnosis of hearing loss, the cause of tinnitus probably was attribute to something else and could not be determined with certainty. The August 2011 opinion is not adequate. It is speculative, and is therefore not probative. At a November 2014 VA examination, the examiner diagnosed chronic otalgia and noted that the Veteran took antipyrine and benzocaine, and also carbamide peroxide for wax build-up. On the examination worksheet, the examiner answered a question asking whether the Veteran had findings, signs, or symptoms attributable to chronic ear infections by identifying hearing impairment and/or tinnitus. The examiner provided no explanation for that finding. Because the examiner's statement lacked an explanation, the Board assigns it little probative weight. At another VA examination later in November 2014, with a different examiner, the Veteran reported that tinnitus began in service. The examiner stated that any tinnitus caused by otitis media would be temporary. The examiner explained that any person with otitis media was very likely to experience temporary aggravation of pre-existing tinnitus, but any permanent tinnitus experienced by the Veteran was not related to service-connected otitis media. The examiner's opinion provides probative evidence against the claim because it was accompanied by an explanation. At a February 2016 VA examination, the Veteran reported tinnitus. He felt that it began after service, but was unable to specify a time or circumstance of onset. The examiner concluded that the Veteran's tinnitus was not directly related to service because he did not relate the onset of tinnitus to a time or circumstance while on active duty, nor did his service medical records show symptoms or a diagnosis of tinnitus. With regard to secondary service connection, the examiner noted that the Veteran's otitis media was not chronic and did not require surgical intervention. The examiner noted that the onset of tinnitus or an increase in severity of pre-existing tinnitus associated with acute otitis media was typically temporary and returned to the baseline once the otitis media had cleared, and therefore it was not likely to result in a permanent aggravation of any existing tinnitus. The Board finds that the findings of the February 2016 VA examiner provide probative evidence against the claim for both direct and secondary service connection. The Board finds that the findings of the November 2014 and February 2016 audiology examiners are more probative than the finding of the November 2014 ear condition examiner. At the March 2011 hearing, the Veteran testified that he experienced tinnitus that began in service. He also reported that in an October 2005 claim and at the November 2014 audiology examination. However, that assertion is inconsistent with his report at the February 2016 VA examination, where he stated that it began after service. Although the Veteran is competent to report tinnitus, continuity of symptoms is not shown based on that February 2016 statement, which contradicts pervious assertions. In this case, the Board finds that the medical evidence of record outweighs the Veteran's lay assertion of continuity of symptoms. Additionally, the Veteran has not been shown to possess medical or audiological training, credentials, or other demonstrated expertise to provide a competent etiology opinion regarding tinnitus. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Accordingly, the Board finds that the preponderance of the probative evidence of record weighs against the claim for service connection for tinnitus on a direct or secondary basis. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs