Citation Nr: 1634824 Decision Date: 09/06/16 Archive Date: 09/09/16 DOCKET NO. 10-45 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to August 1983, from May 2003 to August 2003, and from January 2004 to March 2005. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in May 2014, at which time it was remanded for further development. It is now returned to the Board. FINDINGS OF FACT 1. The Veteran's hearing loss did not originate during active service or within a year of service discharge, and is not otherwise etiologically related to service. 2. The Veteran's tinnitus did not originate during active service or within a year of service discharge, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.307, 3.309, 3.385 (2015). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties 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). In this case, the record shows that the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in October 2009. 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. The Veteran was provided a VA examination in July 2014. The Veteran has not referred to any additional, unobtained, relevant, available evidence. 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). II. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Service connection may also be established for certain chronic diseases manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. §§ 3.307, 3.309 (2015). Sensorineural hearing loss is a chronic disease with a presumptive period of one year, as is tinnitus. 38 C.F.R. §§ 3.307, 3.309 (2015). See Fountain v. McDonald, 27 Vet. App. 258 (2015). For the purposes 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, 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 (2015). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his hearing loss and tinnitus were caused by an in-service accident wherein his machine gun malfunctioned and exploded, as well as by duties as a mechanic. The Veteran's service treatment records document the November 1990 in-service machine gun accident and contain a favorable line of duty determination regarding injuries sustained to the left eye as a result of the accident. The Veteran's service treatment records are negative for complaints of, treatment for, or diagnoses of tinnitus. At a November 1981 examination for enlistment in the Army National Guard, audiometric testing in the right ear was 13 at 500 Hertz, 11 at 1000 Hertz, 15 at 3000, and 11 at 4000 Hertz, and in the left ear was 11 at 500 Hertz, 13 at 1000 Hertz, 15 at 3000 Hertz, and 11 at 4000 Hertz. At a March 1983 periodic medical examination for the Army National Guard, audiometric testing in the right ear was 13 at 500 Hertz, 11 at 1000 Hertz, 15 at 3000, and 11 at 4000 Hertz, and in the left ear was 13 at 500 Hertz, 11 at 1000 Hertz, 15 at 3000 Hertz, and 11 at 4000 Hertz. At an April 1987 periodic medical examination for the Army National Guard, audiometric testing in the right ear was 15 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000, 10 at 4000 Hertz, and in the left ear was 10 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000 Hertz, and 15 at 4000 Hertz. At a July 1991 periodic medical examination for the Army National Guard, audiometric testing in the right ear was 15 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000, 10 at 300 Hertz, and 10 at 4000 Hertz, and in the left ear was 10 at 500 Hertz, 10 at 1000 Hertz, 10 at 2000 Hertz, 0 at 300 Hertz, and 5 at 4000 Hertz. A February 2005 report of medical assessment for demobilization had a notation of hearing loss. A June 2005 VA treatment record indicated the Veteran had hearing loss that was gradually getting worse since 1990 and requested an audiology evaluation. In a September 2005 VA treatment record, it was noted the Veteran complained of bilateral decreased hearing beginning 5 years prior and bilateral constant tinnitus which began 5 years prior. It was noted the Veteran had a history of military and national guard exposure to heavy equipment, recreational noise exposure with power tools, saws, and lawn equipment, and occupational noise exposure as a mechanic. During the examination, the Veteran had hearing sensitivity within normal limits through 1000 Hertz on the right and 500 Hertz on the left. A January 2006 VA treatment record, noted the Veteran reported intermittent bilateral tinnitus. It was noted that a recheck of auditory thresholds was 10 at 1000 and 3000 Hertz on the right and 10 at 2000, 3000, and 4000 Hertz on the left. In July 2014, the Veteran underwent a VA audiology examination, at which time, the Veteran reported working for the National Guard doing the same duties he performed while on active duty. He denied any recreational noise exposure including power tools, denied a history of ear disease, or head or ear trauma. The examiner noted the history presented on examination was in contrast to prior VA records. The examiner opined that the Veteran's left and right ear hearing loss was not caused by or a result of an event the Veteran experienced in service. The examiner explained that though no hearing evaluations could be reviewed from the Veteran's last period of active duty, given that he had significant occupational and recreational noise exposure, that in 1991 his hearing sensitivity was within normal limits in both ears, and the 2006 Institute of Medicine study indicated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure, it was less likely the Veteran's current hearing loss was caused by or a result of an event in his military service. The examiner noted that no hearing evaluations were available from the Veteran's period of active duty from January 2004 to March 2005. The examiner noted that should information from the Veteran's last period of active service be contradictory to the opinion, that it was subject to revision. In regard to tinnitus, the July 2014 VA examiner opined that it was less likely that no (less than 50 percent probability) that it was caused by or a result of military noise exposure. The examiner explained that the Veteran's hearing sensitivity remained within normal in both ears and responses were stable between 1981 to 1991 hearing evaluations. The examiner noted that the Veteran had past significant for occupational and recreational noise exposure and the Veteran previously denied ringing in the ears on a 2003 post deployment form. It was noted that a February 2005 post deployment form noted tinnitus. The examiner noted that a September 2005 medical record indicated that tinnitus began approximately 5 years prior. The examiner stated that the Veteran had significant occupational and recreational noise exposure, that his hearing loss in 1991 was within normal limits, and that he had previously indicated his tinnitus beginning in approximately the year 2000, it was was less likely that his currently reported tinnitus was caused or a result of military noise exposure. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus. Weighing against the claims is the VA examiner's opinion that neither the bilateral hearing loss, nor tinnitus were the result of service. The July 2014 VA examiner supported these conclusions with a rationale based on the evidence that the Veteran had normal hearing when tested the year following the in-service machine gun incident and based upon research from the Institute of Medicine regarding the development of permanent hearing loss following noise exposure. Significantly, while seeking VA treatment in September 2005, the Veteran reported recreational and occupational noise exposure. Statements made while seeking medical treatment are significant and given weight and credibility because they were made at a time when there was no incentive, financial or otherwise, to fabricate information for personal gain. Struck v. Brown, 9 Vet. App. 145 (1996); Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive proper care). However, on examination for compensation purposes, he denied any recreational noise exposure and denied any head or ear trauma. Moreover, the Veteran has presented inconsistent statements regarding the onset of his hearing loss and tinnitus. Due to the inconsistency in the statements concerning post-service noise exposure and the onset of hearing loss and tinnitus, the Board affords the Veteran's statements little probative value, and finds that they do not support a finding of continuity of symptomatology since service. Although there was no hearing evaluation available following the Veteran's most recent period of active duty, it was noted by the July 2014 VA examiner that the Veteran had normal hearing when tested in 1991 which weighs against the Veteran's claim that his current bilateral ear hearing loss and tinnitus are related to the in-service machine gun malfunction. The Board finds that the July 2014 VA audiologist's opinion is probative, as it was based upon a thorough, accurate review of the record, to include specific assertions from the Veteran as to the actual onset and symptoms and is supported by a sufficient rationale. While the Veteran is competent to report things that come to him through his senses, the Veteran is not competent to provide an etiology opinion regarding hearing loss and tinnitus as that requires specialized training. To the extent that a continuity of symptomatology is implied, the Board finds that the Veteran's reports of having hearing loss and tinnitus that began in 2000 outweighs any such contention. In addition, the Board finds the examiner's opinion more persuasive because of the many years of training and expertise of the examiner. Moreover, the Veteran has not submitted any contrary competent evidence linking bilateral hearing loss or tinnitus to service, aside from his own assertions of experiencing acoustic trauma, a fact considered by the VA examiner. Accordingly, the Board concludes that the probative evidence of record does not support the claims of entitlement to service connection for bilateral ear hearing loss or tinnitus on a direct basis. Moreover, because there is no evidence that the Veteran developed bilateral ear hearing loss or tinnitus to a compensable degree within one year of separation from active service, service connection on a presumptive basis is also not warranted. The Board finds that the preponderance of the evidence is against the claims, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs