Citation Nr: 1645204 Decision Date: 12/01/16 Archive Date: 12/19/16 DOCKET NO. 13-15 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active service from January 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, denying the claim currently on appeal. The Veteran filed a notice of disagreement (NOD) on August 2012. A statement of the case (SOC) on April 2013. The Veteran perfected his appeal with the timely submission of a VA Form 9 (Substantive Appeal) on May 2013. A supplemental SOC (SSOC) was issued in April 2016. In August 2015, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A written transcript of that hearing has been prepared and associated with the evidence of record. In October 2015, the Board remanded the Veteran's claims for additional development. An April 2016 rating decision granted entitlement to service connection for sterility. As there has been a full grant of the benefit sought on appeal, the issue of entitlement to service connection for sterility is no longer before the Board. FINDINGS OF FACT 1. The evidence is not sufficient to show that the Veteran exhibited bilateral hearing loss in service or within one year of separation from service, or that bilateral hearing loss is otherwise related to the Veteran's military service. 2. The evidence is not sufficient to show that the Veteran exhibited tinnitus in service or within one year of separation from service, or that tinnitus is otherwise related to the Veteran's military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran's Claims Assistance Act of 2000 (VCAA) 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, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A letter sent to the Veteran in January 2012 provided compliant notice. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes the service treatment records (STRs), VA treatment records, private treatment records, a VA examination report, and evidence submitted by the Veteran, including his lay statements. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran was afforded VA audiological evaluations in examinations in March 2012 and April 2016. In the October 2015 remand, the Board found the March 2012 VA examiner's negative nexus opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Thus, the Board does not rely on the March 2012 opinion in reaching a decision. As to the April 2016 VA audiological evaluation, the Board finds the examination adequate as the examiner reviewed the claims file, considered the Veteran's contentions, and supported her conclusions with a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran testified during a Board hearing in August 2015 at which time the undersigned explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required. These actions satisfied the Veterans Law Judge's duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Neither the Veteran nor his representative has contended, and the evidence does not otherwise show that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In October 2015, the Board remanded the claim for a new VA audiological evaluation. The Veteran was afforded a VA audiological evaluation in April 2016. Thus, the Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. General Legal Principles The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred during active military service or, if preexisting, was aggravated in service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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, in order to prove service connection, there must be competent, credible 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. See, e.g., Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such sensorineural hearing loss and tinnitus (organic diseases of the nervous system), may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis The Veteran contends that he has bilateral hearing loss is related to noise exposure in service. See August 2015 VA Examination. The service personnel records show that the Veteran's military occupation specialty (MOS) was a truck driver. The Veteran also served in combat in the Republic of Vietnam also and was exposed to small arms fire and mortars. The Veteran's MOS has a high probability of noise exposure. Accordingly, considering the places, types, and circumstances of the Veteran's service, the Board finds that the Veteran was exposed to excessive noise in service. 38 U.S.C.A. § 1154(a) (2014). As noted above, the first element of service connection requires evidence of a present disability. 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. Here, the April 2016 VA audiological evaluation revealed a speech recognition score of 100 percent for the right ear and 96 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 20 30 45 LEFT 20 25 20 30 45 Since the Veteran's auditory threshold in the 4000 Hertz frequency is greater than 45 decibels in the left and right ears, the record is clear that the Veteran has a current hearing loss disability with the definition of VA law. In addition, the record is clear that the Veteran has a diagnosis of tinnitus. See August 2012 Private Treatment Records; April 2016 VA Examination Report. Therefore, the issue that remains disputed is whether the Veteran's bilateral hearing loss and tinnitus are related to service. The Veteran's service treatment records are silent for treatment for or complaints of hearing loss or tinnitus. Notably, at separation, the Veteran indicated on his report of medical history that he did not have hearing loss. The Veteran's audiological evaluation puretone thresholds, in decibels, at separation were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 Thus, at the time of separation, the Veteran did not have a hearing disability. As previously noted sensorineural hearing loss and tinnitus may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, a disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Here, however, the Veteran does not assert and the evidence does not show that the Veteran's hearing loss manifested within one year of service. An August 2012 private treatment note written by Dr. D.E.H. of Burlington Ear Nose Throat Clinic indicates that the Veteran reported that his hearing loss began gradually 2 years prior and may be related to a head injury and noise exposure. During the August 2015 Board hearing, the Veteran reported that he realized he had hearing loss around 1994 when he had an Agent Orange physical. With respect to tinnitus, the Veteran reported that the ringing in his ears existed since service. See August 2015 Hearing Transcript. However, post-service treatment records are silent for treatment for or complaints of tinnitus until 2012 - over 40 years after separation. The Veteran was afforded a VA audiological evaluation in April 2016. The examiner opined that the Veteran's bilateral hearing loss was not related to service. The examiner reasoned that the Veteran reported occupational noise exposure driving a semi for 20 years and that at enlistment and separation the Veteran showed normal hearing. The examiner sited to "The Institute of Medicine" and stated, "[T]here is insufficient basis, given the current understanding of auditory physiology, to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Hearing was still normal in 1983, 15 years after the service. VA and private audios from 2010, 2012, 2013, and 2015 showed a high frequency loss configuration consistent with presbycusis [age-related hearing loss]." Similarly, with respect to tinnitus, the examiner concluded that the Veteran's tinnitus was not related to service because the Veteran's tinnitus began 10 years prior which was over 35 years after service. The examiner reasoned that the Veteran's tinnitus likely has the same etiology as hearing loss and it is less likely than likely that the tinnitus is related to military noise exposure. The Board finds the VA examiner's opinion highly probative to the question at hand. The examiner, an audiologist, possessed the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided an adequate rationale in determining that the Veteran's hearing loss was less likely as not caused by acoustic trauma he had in service. Her opinions were based on examinations and interviews of the Veteran. The examiner also reviewed the Veteran's claims folder, which contained his service treatment records and post-service medical evidence and sited to the medical authorities she relied upon in giving her opinion. It is clear that the examiner took into consideration all relevant factors in giving his opinions. The record also indicates that the Veteran had occupation noise exposure post service as a truck driver for 37 years. See March 2012 VA Examination report; August 2015 Hearing Transcript. The Board has also considered the Veteran's assertions that his hearing loss and tinnitus are related to noise exposure. See August 2012 Private Treatment Records. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran's current hearing loss disability is related to noise exposure in service requires medical expertise to determine. Thus the Board finds that the June 2016 VA medical opinion is more probative than the Veteran's statements. In sum the competent medical records to include in the April 2016 VA examination report, the Veteran's post-service history of occupational noise exposure, and the Veteran's statements regarding the onset of his bilateral hearing loss and tinnitus show that service connection for bilateral hearing loss and tinnitus is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs