Citation Nr: 1616940 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 13-19 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty service from August 1970 to June 1980. This appeal before the Board of Veterans' Appeals (Board) arises from a December 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement (NOD) was received in June 2010, a statement of the case (SOC) was issued in June 2013, and a substantive appeal was received in July 2013. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran is not shown to have a bilateral hearing loss disability for VA compensation purposes. 2. The Veteran's tinnitus is not shown to be the result of an event, injury, or illness in military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015); Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and medical or lay evidence not of record that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015). This notice must be provided prior to the initial adjudication of a claim by the RO. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, the letters dated July, August, and October of 2009, sent prior the initial unfavorable decision in December 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The notice letters also provided notice of the evidence and information necessary to establish a disability rating and effective date in accordance with the court's ruling in Dingess. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining the relevant records pertinent to matter herein decided. The pertinent evidence associated with the claims consists of the service treatment records, private treatment records, VA treatment records, reports of private and VA examinations, and the Veteran's statements. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist the Veteran in obtaining the relevant records. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim decided herein. 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). Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be established for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as other organic diseases of the nervous system (i.e., sensorineural hearing loss and tinnitus), may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 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 the above 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385, to define what constitutes a hearing loss disability for VA compensation purposes); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (38 C.F.R. § 3.385 establishes when hearing loss constitutes a disability for entitlement to VA disability compensation benefits). Background and Analysis Bilateral Hearing Loss The Veteran contends that his hearing has decreased over the years due to his military noise exposure. The Veteran has noted that he served in a high noise environment as an aircraft electrician, which is sufficiently supported by the information contained in his DD Form 214. Therefore, the Veteran's exposure to loud noise in service is conceded. A review of the Veteran's service treatment records shows an enlistment hearing test with normal hearing bilaterally. Separation hearing test shows normal hearing bilaterally with no significant shift in hearing threshold levels from enlistment to separation. The Veteran was provided with a private audiological examination by his employer in May 2000. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 15 25 LEFT 25 15 10 20 20 There was no indication that speech audiometry results were provided. The Veteran was provided with an additional private audiological examination by his employer in June 2009. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 15 10 20 LEFT 25 20 20 20 25 There was no indication that speech audiometry results were provided. The Veteran was provided with a VA examination in September 2009. At the examination, the Veteran was administered an audiogram. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 5 10 25 LEFT 25 15 15 20 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Audiogram revealed sensorineural hearing loss bilaterally. It was noted that the Veteran did not have hearing loss for VA purposes. The Veteran was provided with an additional VA examination in April 2010. At the examination, the Veteran was administered an audiogram. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 10 20 LEFT 15 15 10 20 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Audiogram revealed sensorineural hearing loss bilaterally. It was noted that the Veteran did not have hearing loss for VA purposes. Upon review, the service department records, including the Veteran's DD Form 214, do indicate that the Veteran was in a high level noise environment during his period of service. All of the reported thresholds at entry and separation for both ears were within normal limits, and all were 20 decibels or less at separation. As reflected by the May 2000 and June 2009 private audiometric examinations, as well as the results of the September 2009 and April 2010 VA audiometric examinations, there is no evidentiary showing of an auditory threshold of: (1) 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz, (2) 26 decibels or greater for at least three of the above frequencies, or (3) speech recognition scores of less than 94 percent using the Maryland CNC Test. See 38 C.F.R. § 3.385 (2015). The results of the VA audiometric examinations in September 2009 and April 2010 were interpreted as revealing sensorineural hearing loss, bilaterally. That notwithstanding, under the standards established by 38 C.F.R. § 3.385, there is no indication of a bilateral hearing loss "disability" during service or at separation. In fact, the results of the post-service (private and VA) audiometric examinations in the instant case are insufficient to establish that a bilateral hearing loss "disability" is indicated at present. See Palczewski v. Nicholson, 21 Vet. App. at 178-80; Hensley v. Brown, 5 Vet. App. at 157. Thus, since section 3.385, as relevant here, prohibits a finding of a hearing loss "disability," where the requisite hearing status is not met, Hensley, 5 Vet. App. at 160, it is therefore apparent that the Veteran's bilateral sensorineural hearing loss (as documented in the reports of VA examination in September 2009 and April 2010) does not constitute a presently existing "disability," for which service connection may be granted. See Palczewski and Hensley, both supra; see also Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). As a consequence, in a case such as this one, where the law and not evidence is dispositive of the issue before the Board, the claim should be denied because of the absence of legal merit or lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the claim of service connection for bilateral hearing loss is denied. Tinnitus Although the Veteran has provided multiple dates for the onset of his tinnitus, with his most recent VA examination finding he is an unreliable historian, he has still generally contended that it began during military service or sometime thereafter. The Veteran has noted that he served in a high noise environment as an aircraft electrician, which is further reflected by the Veteran's DD Form 214. Therefore, exposure to acoustic trauma in service is conceded. A review of the Veteran's service treatment records was absent for a discussion of complaints or diagnoses of tinnitus. It is noted that the Veteran has stated that he was treated for a head injury in service and administered different medications on occasion. However, there are no records regarding that treatment in the service treatment records. A review of the Veteran's outpatient treatment records shows that the Veteran has been treated for hearing loss since at least 2000. These records were absent for a discussion of etiology. The Veteran was provided with a VA examination in September 2009. The examiner noted that the Veteran had a current diagnosis of tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not related to acoustic trauma in military service. In support, it was provided that the Veteran had normal hearing at enlistment and separation with no shift in hearing thresholds during his service years. His tinnitus is likely progressive due to further noise exposure and age. The Veteran was provided with an additional VA examination in April 2010. The examiner noted that the Veteran had a current diagnosis of tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not related to acoustic trauma in military service or a head injury in service. In support, it was provided that the Veteran had normal hearing at enlistment and separation with no shift in hearing thresholds during his service years. His tinnitus is likely progressive due to further noise exposure and age. The Veteran was provided with an additional VA examination opinion in September 2014. The examiner noted that the Veteran had a current diagnosis of tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not related to acoustic trauma in military service, medication, or a head injury in service. In support, it was provided that the Veteran was an unreliable historian and there was no medical evidence that supported such a relationship. Based on the evidence of record, the Board finds that service connection for tinnitus is not warranted. In this regard, the Veteran's service treatment records are negative for tinnitus. Specifically, the service treatment records do not confirm that he complained of or was treated for tinnitus. In Hensley v. Brown, 5 Vet. App. 155, 159 (1993) the Court stated that: [Applicable VA regulations do] not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. . . . Therefore, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 159-60. The holding in Hensley was that VA may not use audiometric tests from a claimant's separation examination as a per se legal bar on proving service connection. In Hensley, in-service audiometric testing yielded elevated thresholds at some frequencies and, so, the Court found that even if audiometric testing at service separation did not met the requirements of 38 C.F.R. § 3.385 (establishing hearing loss by VA standards) the service connection claim could not be denied solely on that basis. Rather, if there were any current hearing loss (by VA standards) it had to be determined whether shifts in auditory thresholds during service represented the onset of any current hearing loss (even if first diagnosed a number of years after service). However, the holding in Hensley, Id., places no limitation on the results of in-service audiometric tests being used by medical examiners to reach an opinion, even a negative opinion, and does not hold that VA must disregard an otherwise adequate medical opinion (even if a post service examiner found audiometric results etiologically relevant). See Gruen v. Shinseki, No. 09-3603, slip op. (U.S. Vet. App. May 16, 2011) (nonprecedential unpublished memorandum decision); Slip Copy, 2011 WL 1837395 (Table) (Vet.App.) (noting that the Board had conceded in-service exposure to acoustic trauma and the claimant currently had a hearing loss by VA standards). The Board is of the opinion that a proper reading of the opinion of the VA examiners' in this case is, at least implicitly, that the audiometric testing conducted at the time of the Veteran's service separation examination did not reflect a shift in auditory thresholds at any relevant frequency in either ear. Therefore, there was not any indication that would be consistent with a finding that the Veteran's tinnitus onset was during military service. Thus, the holding in Hensley, Id., is inapposite. Moreover, a fair reading of the VA audiology examination reports of record reflects that the audiologists were not positing a belief that service connection is unavailable when a veteran leaves service with normal hearing (which would contravene Hensley). Rather, the VA audiologists were stating that, according to his/her knowledge, experience, and judgment, tinnitus had not been shown to manifest until years after the offending in-service noise had ceased. Such a statement, rendered by an audiologist, does not contravene Hensley. Additionally, it is noted that the VA examiners adequately considered the Veteran's other theories of service connection, including allegations of an in-service head injury and medications. Although these were considered, the VA examiners found that the lack of a threshold shift was more dispositive and that, therefore, such occurrences were not the likely cause of the Veteran's current tinnitus. There is information on file indicating that the Veteran may have been subjected to acoustic trauma during service. Even assuming, and conceding, that the Veteran was exposed to acoustic trauma in combat, and even in non-combat circumstances, during service, this is not the same as having sustained the type of injury that causes chronic hearing loss and tinnitus, and having resulting chronic disability. In other words, even if he was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals, including tinnitus, which were caused thereby. The Veteran and his representative have not pointed to any such statutory or regulatory presumption to this effect, and the Board is aware of none. Thus, while not disagreeing that the Veteran sustained acoustic trauma, under the circumstance which he has related, the Board rejects the notion that his current tinnitus should be conceded as being due to in-service acoustic trauma. As to this, 38 U.S.C.A. § 1154(b) provides that in the case of a combat veteran lay or other evidence of service incurrence or aggravation is sufficient proof of the occurrence of an event but this deals with what happened during service and not the questions of either the existence of current disability or a nexus to service. Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed.Cir. 2009) (finding that 38 U.S.C.A. § 1154(b) does not require controlling weight be given to testimony as to the cause of a combat veteran's death); see also 38 C.F.R. § 3.304(d). In short, the audiometric testing at both service entrance and at service separation did not met VA criteria for the presence of hearing loss and did not reveal any threshold shift. The Veteran's pre-separation physical examination and questionnaire are particularly probative both as to the Veteran's subjective reports and the resulting objective findings. These examination reports were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, the opinion of the recent VA examiner is negative and is the only competent medical opinion addressing this question and, so, this medical opinion stands unrebutted. The Veteran's first reports of tinnitus, and attempts to link them to in-service acoustic trauma, do not antedate a point in time which is decades after his military service. Moreover, the Board finds it significant that the Veteran had not filed a claim for service connection for tinnitus until 2008, more than two decades after military service. It would be reasonable to expect that if he had had tinnitus, or noticed tinnitus during service, that he would at that time have filed claims for service connection for the disorder at a much earlier point in time. However, he did not and this suggests that he did not have or believe that he had tinnitus at that time. Moreover, he has not proffered any reason for not having filed claims for service connection for tinnitus until 2008. The Board is cognizant that while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board, however, finds in the instant case that the combination of the lack of treatment for tinnitus during service; audiometric testing at service discharge which found no elevated threshold levels at any relevant frequency in either ear; his not having complained of tinnitus at service discharge; his not having sought treatment or disability compensation for tinnitus immediately after service; the fact that his post-service clinical records are negative for any findings of tinnitus, for many years after his service discharge, to be persuasive evidence against his claims. As to the second and third circumstances, delineated in Jandreau, Id., when lay evidence may establish a diagnosis, the Veteran has not reported or stated that he was given a diagnosis during service of tinnitus (the 2nd circumstance under Jandreau). His statement that he had tinnitus even during military service are simply too vague to suggest, much less establish that he was given a formal diagnosis of tinnitus during service (the 3rd circumstance under Jandreau). The Veteran may believe that his now chronic tinnitus is related to his active service. As to this, a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. See Jandreau, Id. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran being untrained and uneducated in medicine is not competent to address etiology in the present case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (a lay claimant is not competent to provide evidence as to more complex medical questions). In fact, the complexity of diagnosing the nature and etiology of the Veteran's current tinnitus is shown by the absence of contemporaneous clinical or lay evidence of each until long after service. In fact, so complex is it that a medical opinion had to be obtained. Unfortunately, the medical opinion is negative and does not support the claims. Rather, it is probative evidence against the claims. Therefore, the Board finds that because the Veteran's tinnitus was first manifested several decades after active service and any acoustic trauma therein, and are not related to any disease, injury, or incident of military service, direct service connection for such disorder is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs