Citation Nr: 1636547 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 14-40 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for recurrent tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from June 1979 to June 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified before the Board at a December 2015 hearing conducted via videoconference. A transcript of the hearing is of record. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, he is diagnosed with recurrent tinnitus that began during active service and has persisted since. 2. Bilateral hearing loss was not manifest during the Veteran's period of active service or to a compensable degree within one year of service discharge; any current bilateral hearing loss is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. Recurrent tinnitus was incurred in active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. Bilateral hearing loss was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination in conjunction with his claim. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2015); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). This VA examination is adequate for the purposes of the instant appeal, as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate basis for the diagnosis and opinions rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, as noted above, the Veteran was provided a hearing before the Board in December 2015. The Board finds that the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and adjudication of the Veteran's appeal may proceed. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic disabilities, including bilateral hearing loss and recurrent tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). Recurrent Tinnitus The Veteran asserts entitlement to service connection for tinnitus directly due to active service. Initially, the Board observes that service treatment records do not reveal complaints or a diagnosis of tinnitus. At a June 2013 VA examination, the Veteran reported simply that his tinnitus began many years ago. However, at the December 2015 Board hearing, the Veteran testified that, during active service, he began to intermittently experience symptoms of what he now knows to be tinnitus, and that this symptomatology has increased in frequency and severity since service. Tinnitus is the type of disorder associated with symptoms capable of lay observation (e.g., ringing or buzzing in the ears). See Charles v. Principi, 16 Vet. App. 370 (2002). Despite the negative VA opinion of record, which relates the Veteran's tinnitus to bilateral hearing loss, the Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is competent to report that he has tinnitus, and has testified that he has had tinnitus since his period of active service. The Board notes the record does not contain any statements from the Veteran to the contrary. The Board therefore accepts the Veteran's testimony and finds his statements that he has had tinnitus since service are credible. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the reasons discussed above and resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. Bilateral Hearing Loss The Veteran seeks entitlement to service connection for bilateral hearing loss due to in-service acoustic trauma. Initially, the Board observes that the report of a June 2013 VA examination establishes a current diagnosis of bilateral hearing loss for VA purposes. The remaining question is whether there is a nexus between in-service acoustic trauma and his current bilateral hearing loss. Service treatment records are absent complaints or a diagnosis of hearing loss. In this regard, a June 1983 Report of Medical Examination (RME), conducted prior to the Veteran's discharge from service, indicates normal hearing upon audiometric testing. In fact, the Board notes that the Veteran's hearing as reflected by the June 1983 RME improved at most frequencies when compared to audiometric testing performed at service entrance. See also January 1979 RME. Furthermore, the Veteran himself affirmatively denied symptoms of hearing loss at service discharge. See June 1983 Report of Medical History. As such, the Board finds the Veteran did not suffer from bilateral hearing loss during active service. The first post-service evidence of hearing loss is a June 2013 VA examination, performed approximately 30 years following service separation. While not dispositive of the issue of service connection, the Board may, and will, consider in its assessment the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Further, there is no competent and credible evidence of compensable hearing loss within one year of service discharge. As such, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309(a). As noted above, the Veteran was provided a VA examination in June 2013, at which time he was first diagnosed with bilateral hearing loss. After reviewing the claims file and examining the Veteran and his reported history, the VA examiner opined that it was less likely than not that any current hearing loss is etiologically related to service. The examiner considered the record and noted the lack of in-service symptomatology, nature of in-service acoustic trauma, and the lack of any significant threshold shift as reflected by the Veteran's entrance and separation examinations. The Board has considered the application of the concept of continuity of symptomatology in reviewing this claim, as hearing loss is a "chronic disease." See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, the Board acknowledges the Veteran's own lay statements that he began to notice symptoms of hearing loss during service, and such symptoms have persisted since service. See, e.g, December 2015 Board hearing transcript. While the Veteran is competent to report his symptoms, the Board finds these statements are not credible as they are in significant conflict with the Veteran's affirmative statement at the time of separation that he did not have hearing loss. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board finds it reasonable to conclude that, if the Veteran had experienced symptoms of decreased hearing, he would not have affirmatively denied such symptoms even as he reported a history of other conditions at the time. As such, service connection may not be granted for hearing loss based solely on the lay statements submitted in support of the claim. The Veteran has not produced a competent medical opinion establishing an etiological link between his current bilateral hearing loss and his active service. While he is competent to report (1) symptoms observable to a layperson, e.g., decreased hearing ability; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute the only evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). In sum, there is no competent medical evidence of record supporting the Veteran's assertion that his bilateral hearing loss is etiologically related to his active service. The absence of any complaints of or treatment for this condition in service, the affirmative denial of hearing loss at service discharge, the lack of a diagnosis, complaints, or treatment for approximately 30 years after service, as well as the negative VA etiological opinion, are probative evidence against the claim for direct service connection. The only evidence in support of the claim, specifically the lay statements regarding the onset and continuity of symptomatology, have been found not credible in light of the objective medical and contemporaneous evidence and, thus, are afforded no probative value. In addition, the Veteran as a lay person is not competent to provide an etiological opinion for his currently diagnosed hearing loss as such is beyond the capability of a lay person to observe. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107. ORDER Service connection for recurrent tinnitus is granted. Service connection for bilateral hearing loss is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs