Citation Nr: 1619951 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 12-09 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had active service from December 1968 to January 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Phoenix, Arizona Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that rating decision, the RO denied service connection for tinnitus. In March 2016, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is in his claims file. FINDINGS OF FACT 1. The Veteran had extensive exposure to airplane noise during service. 2. Tinnitus that the Veteran noticed years after service is not attributable to his noise exposure during service. CONCLUSION OF LAW Current tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. VA provided the Veteran notice in an October 2010 letter. In that letter, VA advised the Veteran what information was needed to substantiate claims for service connection. The letter also informed the Veteran how VA assigns disability ratings and effective dates. In the March 2016 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error. The Veteran's claims file contains service treatment records, post-service treatment records, reports of VA examinations, and a transcript of the March 2016 Board hearing. The reports of VA examinations contain relevant findings and sufficient information to allow a decision on the issue on appeal. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Tinnitus The Veteran contends that he has tinnitus that is attributable to his exposure during service to aircraft engine noise. Service connection may be established for a 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 also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including organic diseases of the nervous system, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service of ninety days or more during a period of war. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For those listed diseases, under 38 C.F.R. § 3.309(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology. See Walker v. Shinseki, 708 F.3 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or during an applicable presumptive period). See also Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In December 1968, the Veteran underwent medical examination for entrance into service. In a medical history, he checked "no" for any history of ear trouble. On the examination report, the examiner checked "normal" for the condition of his ears. Audiometric testing showed hearing levels that do not constitute an impaired hearing disability for VA disability benefits purposes. See 38 C.F.R. § 3.385 (2015). The Veteran's service personnel records show that he had duties as a security policeman, and that he was stationed at two different Air Force Bases. Notes of treatment that he received during service are silent as to any ear problems. In August 1969, he underwent examination for separation from service. In a medical history, he checked "no" for any history of ear trouble. On the examination report, the examiner checked "normal" for the condition of his ears. Audiometric testing showed hearing levels that do not constitute an impaired hearing disability for VA disability benefits purposes. In June 1971, the Veteran had another service department medical examination, to address problems with his left shoulder. The examiner checked "normal" for the condition of his ears. Audiometric testing showed hearing levels that do not constitute an impaired hearing disability for VA disability benefits purposes. In August 2010, the Veteran submitted a claim for service connection for tinnitus and hearing loss. On VA audiological examination in October 2010, the Veteran reported that during service his duties were as a security police officer. He stated that he worked along the flight line, where he was exposed to aircraft noise, and did not wear hearing protection. He related that after service his employment was in the restaurant business. He reported that for the last ten to fifteen years he had experienced mild intermittent tinnitus. He stated that the tinnitus occurred approximately weekly, and lasted for minutes when it occurred. He indicated that tinnitus occurred at times when he had symptomatic sinus problems. Audiometric testing showed hearing levels that were worse than those shown on testing during service, and that the examiner described as bilateral hearing loss, but that nonetheless do not constitute an impaired hearing disability for VA disability benefits purposes. The examiner expressed the opinion that the Veteran's tinnitus was as likely as not a symptom associated with his hearing loss. Noting the hearing levels measured during service, she expressed the opinion that it is less likely than not that his present hearing loss was related to his noise exposure during service. Regarding tinnitus, she noted that there was no service record indicating that he reported tinnitus then, that disabling hearing loss did not become manifest during service, and that the Veteran reported that he noticed tinnitus beginning ten to fifteen years before the 2010 examination and only during times of sinus discomfort. Considering that history, the examiner expressed the opinion that it was not possible to determine if his tinnitus was related to noise exposure during service without resorting to mere speculation. In an April 2012 statement, the Veteran wrote that during service he was exposed to acoustic trauma daily while working on the flight lines. He stated that he had been informed that it is as likely as not that his tinnitus was caused by that noise exposure during service. In May 2014, private ear, nose, and throat (ENT) specialist S. A., M.D., evaluated the Veteran for hearing loss. The Veteran reported that during service he had police duties on an Air Force Base. He stated that he had long daily shifts on the flight line, running next to airplanes as they took off. He indicated that hearing protection was not offered. He reported a long history of difficulty hearing. It was noted that his hearing loss was directly due to that noise exposure. It was also noted that he had constant tinnitus. On examination, the Veteran's middle ears and tympanic membranes were normal. There was cerumen impaction in his left ear. Audiometric testing showed bilateral moderate to severe sensorineural hearing loss, at levels that are considered a disability for VA disability benefits purposes. Dr. A. expressed the opinion that the Veteran's hearing loss was from his military exposure to noise from airplanes. She indicated that he was in severe need of hearing aids with tinnitus blockers. In the March 2016 Board hearing, the Veteran reported that during service he was a security police office on an Air Force Base where there were very frequent takeoffs and landings of airplanes. He stated that he was not offered any ear protection. He related that he had duties on the flight line guarding airplanes, including running next to the planes as they moved around. He stated that he was exposed to airplane noise for hours every day. He reported that during and soon after service he was young, and did not pay much attention to effects on his ears from the noise exposure during service. He stated that after service he worked in a restaurant company office, and later began working as a teacher. He indicated that over the years he noticed increasing problems with his ears. In the 1990s, he stated, the effects of the noise exposure during service became more evident to him. He related that he sought VA treatment in the mid 1990s and again in the early 2000s, but was denied treatment. He stated that later he got assistance seeking VA treatment and benefits. He reported that presently he had constant ringing in his ears and had difficulty hearing. He indicated that in his present work as a teacher he had difficulty hearing what his students said. He stated that on a recent evaluation a hearing specialist found that he had severe hearing loss. In recent years the Veteran has consistently reported having tinnitus. He has provided a thorough description of the extensive aircraft noise to which he was exposed during service. The evidence is sufficient to show that he currently has tinnitus and that he had considerable noise exposure during service. The evidence is less clear as to a relationship between the noise exposure during service and the current tinnitus. The Veteran has reported having noise exposure during service and no significant noise exposure after separation from service. If at any time, during or after service, he reported that he experienced tinnitus right after or fairly soon after the noise exposure during service, such history would constitute strong evidence that tinnitus began during service and continued after service. However, the Veteran has not stated that he noticed tinnitus during or soon after the noise exposure during service. He reported that tinnitus became more apparent to him twenty or more years after service. He has not indicated when he first perceived tinnitus. The VA audiologist who examined him in 2010 stated that the question as to whether there is a relationship between the service noise exposure and the current tinnitus could not be resolved without resorting to mere speculation. In 2014, the ENT physician Dr. A. related his hearing loss to the service noise exposure, but did not provide any direct opinion as to the likely etiology of his tinnitus. As the Veteran has not indicated that he had continuity of tinnitus symptomatology, and no clinician has supported a connection between the noise exposure during service and the tinnitus experienced years later, the preponderance of the evidence is against a nexus, and therefore against service connection. ORDER Entitlement to service connection for tinnitus is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs