Citation Nr: 1634105	
Decision Date: 08/30/16    Archive Date: 09/06/16

DOCKET NO.  10-30 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for a bilateral hearing loss disability.

2. Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Rocktashel, Associate Counsel





INTRODUCTION

The Veteran served on active duty from March 1969 to January 1971.  Of note, the Veteran is the recipient of a Combat Infantryman Badge, a Vietnam Service Medal with Two Bronze Service Stars, and an Army Commendation Medal with Oak Leaf Cluster, among other awards. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veteran's Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection.  Jurisdiction is presently with the RO in Detroit, Michigan.

In December 2013, the Board remanded this issue for further evidentiary development.  The requested development was completed, and the case has now been returned to the Board for further appellate action.  

While the Veteran requested a hearing on his July 2010 substantive appeal, the record reflects that he later withdrew his request for a hearing in August 2010.  The record does not reflect that he subsequently requested a hearing before the Board.  While the Veteran's representative noted in an August 2016 informal brief that the Veteran testified at a Board hearing at the Waco RO in June 2015, this notation appears to be in error.  The record does not show that the Veteran was scheduled for a hearing at that time.  Moreover, since at least 2013 the Veteran has resided in Michigan, if a hearing had been scheduled, it most likely would have been held at the Detroit RO.  Accordingly, the Board will proceed with a decision in this matter. 


FINDINGS OF FACT

1.  A bilateral hearing loss disability was not manifest during service.   A hearing loss disability is not attributable to service.  An organic disease of the nervous system was not manifested in service or within the one-year presumptive period following service.

2.  Tinnitus was not manifest during service.  Tinnitus is not attributable to service.  An organic disease of the nervous system was not manifested in service or within the one-year presumptive period following service.


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was not incurred in or aggravated during service, and an organic disease of the nervous system may not be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2016).

2.  A bilateral tinnitus disability was not incurred in or aggravated during service, and an organic disease of the nervous system may not be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  The VCAA applies to the instant claim. 

VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The duty to notify in this case was satisfied by a letter or letters sent to the Veteran in September 2008.  The claim was last adjudicated in February 2014.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In that regard, the Veteran's service treatment records, VA treatment records, and lay statements have been associated with the record.  

In October 2008, VA afforded the Veteran an audiological examination and obtained a medical opinion.  Pursuant to Board remand, in January 2014, VA obtained an additional medical etiological opinion with respect to the Veteran's hearing loss.  The January 2014 VA examiner reviewed the evidence of record, considered the Veteran's history and statements, and rendered a medical opinion based upon the facts of the case and the examiner's knowledge of medical principles.  The examiner provided a thoroughly reasoned opinion that addressed the Board remand directives.  Although the examiner used the term "speculation" in the medical opinion, he did not render an opinion based on speculation.  Rather, he suggested what kind of opinion might be speculation.  Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Additionally, the Board finds that the RO substantially complied with the Board's remand instructions.  See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for an organic disease of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).  

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


Analysis of Service Connection Claims

In May 2008, the Veteran claimed entitlement to service connection for bilateral hearing loss and bilateral tinnitus due to an explosion from a booby trap while he was in South Vietnam.  He also claims his combat service, in general, exposed him to hazardous noise.  He maintains that the explosion "screwed up" his hearing ever since, and that he even went deaf for a period after the explosion.  See July 2010 Statement from Veteran.  The RO conceded military noise exposure as the Veteran was in the light weapons infantry in the U.S. Army.  He also asserts that he denied hearing loss and tinnitus in his medical history report upon release from service because he did not want to delay his release.  Finally, he reports that he wore hearing protection during his post-service activities in which he was exposed to hazardous noise.

The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).  However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 results of the October 2008 VA audiology examination confirm the presence of a bilateral hearing loss disability under VA regulations.  The results showed:


HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
5
10
10
65
70
96
LEFT
5
5
10
25
45
96

As a result of the examination, the examiner diagnosed the Veteran with high-frequency, noise-induced hearing loss, bilaterally.

Service treatment records show two sets of puretone threshold results on a pre-induction/induction examination report.  The results were:


HERTZ

500
1000
2000
3000
4000
RIGHT
25
5
5
--
5
LEFT
25
20
5
--
5

and


HERTZ

500
1000
2000
3000
4000
RIGHT
5
-5
-5
--
-5
LEFT
0
-5
-5
--
-5

During the October 2008 VA audiology examination, the Veteran reported having bilateral hearing loss due to acoustic trauma in Vietnam and constant bilateral tinnitus that began about 10 years prior to the examination.  He reported first seeking treatment for his hearing disturbances in April 2008.

After a review of the record, the examiner opined that there were no permanent effects on the Veteran's hearing of the hazardous noise exposure sustained in service.  The examiner reasoned that the Veteran exited service in January 1971 with normal bilateral hearing sensitivity according to his pure tone air conduction thresholds.  The examiner further reasoned that research studies have shown that hazardous noise exposure has an immediate effect on hearing and it does not have a delayed onset, nor is it progressive or cumulative.  The examiner cited, in part, the 2005 finding from the Institute of Medicine's "landmark" study: Noise & Military Service.  The examiner further reasoned that the Veteran s exposure to hazardous noise in civilian life was far greater than his exposure to hazardous noise in the military.  Based on these studies, according to the examiner, the Veteran's hearing test at the time of his military separation accurately represented the effects of any hazardous noise exposure the Veteran sustained during active military service.  Therefore, the examiner opined, the nexus with military service was far less than a 50 percent probability relationship compared to his exposure to hazardous noise in civilian life.

With respect to tinnitus, the October 2008 VA examiner noted that the veteran reported that his tinnitus became constant about 10 years ago.  The examiner cited the NOISE MANUAL (Fifth Edition edited by Berger, et al AIHA Press, 2000 p. 125) for the principle that only seldom does noise cause a permanent tinnitus without also causing hearing loss.  Based on the aforementioned evidence, therefore, the examiner opined that this Veteran s bilateral hearing loss and tinnitus were not due to his history of military noise exposure acoustic trauma or any event during military service.

In January 2014, a new medical opinion was obtained pursuant to Board remand.  After a review of the record, the examiner opined that bilateral hearing loss and tinnitus were less likely than not incurred in or caused by service.   The examiner's reasoning was based, in part, on: the results of the service treatment records showing he entered and exited active military service with normal bilateral hearing sensitivity according to his pure tone, air conduction thresholds, with no statistically significant, permanent decrease; the denial by the Veteran of having ear trouble or hearing loss at separation; research results regarding the immediate effect of hazardous noise exposure; the Veteran's report that tinnitus became constant approximately 10 years prior, and, before that, it was most likely brief, spontaneous tinnitus, lasting seconds to minutes, which is nearly universal; and that medical literature shows that tinnitus without hearing loss is unlikely.  The examiner further pointed to inconsistent statements by the Veteran.

The January 2014 VA medical opinion addressed the concern the Board had in its December 2013 remand of the possible inaccuracy of the audiometric findings in the service treatment records.  The examiner noted the October 2008 review of service treatment records and its specific report of the June 1968 (i.e. the second set) of audiometric results at induction, and opined that a comparison of the Veteran's enlistment audiogram to his separation audiogram showed that the actual thresholds at each frequency for both ears showed normal test-retest variability, and that there was nothing unusual or unexpected in the thresholds of the enlistment and separation audiograms.  Thus, the examiner considered the variations contained in the induction examination.  

Based on a review of the record, the Board finds that service connection for bilateral hearing loss and bilateral tinnitus is not warranted.  The preponderance of the evidence shows that noise exposure did not cause hearing loss or tinnitus, and that an organic disease of the nervous system was not manifest in service or within the one year period following service.

In that regard, the October 2008 and January 2014 VA examinations are highly probative evidence against a link between the conceded in service noise exposure and the current bilateral hearing loss disability and tinnitus.  With respect to bilateral hearing loss, the examinations are based largely upon the objective medical, written evidence.  The examination reports upon which the VA examinations were based were recorded at the time of service.  In contrast, the Veteran's reports of hearing loss in service are not based upon objective medical testing and are made many years after service in the context of a claim for compensation.  Thus, the Board assigns these reports of the Veteran negligible probative value.

With respect to tinnitus, the October 2008 and January 2014 VA medical opinions are well-supported with medical literature and comparison to the Veteran's hearing acuity.  The opinion that the Veteran's tinnitus was likely, until approximately 1998, a common condition, rather than a disability, is consistent with the Veteran's report that he did not seek treatment for hearing difficulties until 2008.  Due to the experience, knowledge, and training of the VA medical examiners and the persuasiveness of the reports, the Board finds these opinions are significantly greater in probative weight than the Veteran's self-report of constant tinnitus made many years after the relevant time period and not until the claim of compensation was made.

A preponderance of the evidence also shows that hearing loss and tinnitus, as organic diseases of the nervous system, was not manifest in service or within one year following service.  The Veteran denied hearing loss and ear trouble at separation from service.  This written record, contemporaneous to separation from service, is more credible and of greater probative weight than the Veteran's present day assertions associated with his claim, including his later assertion that he did not report hearing difficulties at separation because he did not want to delay separation.  The present day assertions are reduced in credibility by their reliance on memory as there is no written record, and by their potential bias in connection with a claim for compensation.  Thus, an organic disease of the nervous system or its characteristic manifestation was not identified in service.

With respect to the one year period following service, the only evidence supporting the claim is the Veteran's assertions beginning from the date he filed his claim.  In that regard, the assertions that the Veteran's hearing was "screwed up" in service and ever since are not credible because the objective testing shows the Veteran's hearing was normal at separation from service.  Therefore, the Board cannot rely on the implied assertion that his hearing was abnormal within a year of service.  With respect to tinnitus, in a July 2010 statement, the Veteran conceded that he is not sure when tinnitus started and he does not know if it was related to service.  The Veteran further stated that he "give[s] up on Tinnitus."  The Veteran also reported in the October 2008 VA examination that tinnitus became constant ten years prior.  These statements are not credible because they are vague as to the onset of tinnitus, and are, therefore, speculative as the onset of tinnitus within the year following separation from service.

Based on the foregoing, a preponderance of the credible evidence is against a finding that the Veteran had hearing loss or tinnitus in service or within one year of separation from service, and that hearing loss and tinnitus was not due to noise exposure in service.  Accordingly, service connection is not warranted.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107 (2014); Alemany, 9 Vet. App. at 519.

ORDER

Service connection for a bilateral hearing loss disability is denied.

Service connection for bilateral tinnitus is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs