Citation Nr: 1648221	
Decision Date: 12/28/16    Archive Date: 01/06/17

DOCKET NO.  13-03 351A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for right ear hearing loss.

3. Entitlement to service connection for left ear hearing loss.



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Eric Struening, Associate Counsel



INTRODUCTION

The Veteran had active duty service from February 1969 to December 1970.  This case comes before the Board of Veterans' Appeals (Board) from a Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO) rating decision in September 2011 that (1) denied service connection for bilateral hearing loss, and (2) denied service connection for tinnitus.  The Board will address claims for hearing loss in each ear separately, because the relevant facts and legal analysis underlying the outcome is different for each ear.  Therefore, the claim has been recharacterized as listed on the front page of this decision. 
	

FINDINGS OF FACT

1. The Veteran has tinnitus that is as likely as not related to his active duty service. 

2. The Veteran is not shown to have qualifying hearing loss in his right ear.

3. Left ear hearing loss was not manifested in service; Left ear sensorineural hearing loss (SNHL) was not manifested in the first year following service; and the preponderance of the evidence is against a finding that the Veteran's current left ear hearing loss is related to an event, injury or disease in service.


CONCLUSION OF LAW

1. Service connection for tinnitus is warranted.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

2. Service connection for right ear hearing loss is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015).

3. Service connection for left ear hearing loss is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

 The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA's duty to notify was satisfied by an August 2011 letter.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran's service treatment records, VA treatment records, and private treatment records have been secured.  He was afforded a VA examination in September 2011 for hearing loss and tinnitus; the Board finds that this examination is adequate to adjudicate the claims because the examiner's opinions were based on an accurate factual premise and supported by an adequate explanation (rationale). Therefore, VA's duty to assist is met.


Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a).

Lay testimony is competent to establish the presence of observable symptoms and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony 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, 312 (2007).  Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When a chronic condition (including sensorineural hearing loss) is present, a claimant may establish the second and third elements by demonstrating continuity of symptoms.  38 C.F.R. § 3.303 (b).  Certain chronic diseases (including sensorineural hearing loss and tinnitus) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307, 3.309.  The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. 

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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.

When 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 each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.  When all of 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).

The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  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).  The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or does not show, as to the claim.


Factual Background

The Veteran reports that he incurred bilateral hearing loss and tinnitus as a result of in-service noise exposure from loud noises.  The Veteran's DD Form 214 reflects that he was awarded the combat infantryman badge.  Therefore, in-service noise exposure has been established. 

The service treatment records (STRs) do not include any complaints of hearing loss or tinnitus.  

On February 1969 pre-service induction examination, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
10
N/A
5
LEFT
5
0
10
N/A
5

On December 1970 service separation examination audiological examination, puretone thresholds were:
	



HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
N/A
5
LEFT
0
0
0
N/A
15

His ears were evaluated as normal.  

On June 2011 private audiological examination, puretone thresholds were:
	



HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
N/A
35
LEFT
15
15
20
15
40

Speech discrimination testing was not performed.  The Veteran reported that he fired mortars in service; he has some hearing loss; and ringing in both ears.  Based on this examination, the examiner diagnosed bilateral sensorineural hearing loss at 4000 and 8000 cycles, with normal lower frequencies, and tinnitus. 

On September 2011 VA audiological examination, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
35
30
LEFT
5
5
15
30
40

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear.  The Veteran reported he has hearing loss bilaterally and was unsure of its onset, and bilateral tinnitus which started in service following exposure to mortar firing.  The examiner noted the Veteran's history of military, occupational, and recreational noise exposure as follows: from mortars and rifle firing with ear protection some of the time; from working at a mobile home plant for four months; at the Tennessee Valley Authority for thirty years with the use of ear protection; and recreationally from hunting with the use of ear protection.  

Based on this examination, the examiner diagnosed the Veteran with mild-high frequency sensorineural hearing loss in the left ear, and bilateral tinnitus.  The examiner noted normal hearing sensitivity in his right ear for VA purposes.  The examiner opined that the Veteran's current left ear hearing loss is less likely as not caused by or the result of noise exposure because there was normal hearing sensitivity throughout service with no change in thresholds for either ear.  The examiner explained that "the Institute of Medicine Report on noise exposure in the military concluded that based on current knowledge NIHL (noise induced hearing loss) occurs immediately, i.e. there is no scientific support for delayed onset NIH: weeks, months, or years after the exposure event."  The examiner also found that he could not opine as to whether the Veteran's tinnitus was related to noise exposure in service without resorting to speculation because "if there is no hearing loss or changes, the cause of tinnitus probably lies elsewhere, or more likely, cannot be determined to a reasonable degree of certainty based on the evidence."

In his February 2013 VA Form 9 appeal, the Veteran reported that, as to hearing loss, no link to service has been established because the December 1970 service separation examiner did not perform a medical exam.  The Veteran reported that the examiner "processed me out in about 10 minutes with no medical exam whatsoever.  I was in an MP company at the time and he did this for use because we took care of his traffic tickets.  I just wanted out of the Army as soon as possible.  I did not realize I had any hearing loss."  As to tinnitus, the Veteran reported experiencing ringing in his ears during service from mortar and gun fire, which he stated has persisted since service.  


Analysis

Tinnitus 

The Veteran has reported experiencing ringing in his ears during service from mortar and gun fire, and that the ringing in his ears has persisted since service.

In this case, the Board finds that the Veteran's statements of his in-service noise exposure and tinnitus beginning in service are competent and credible lay evidence that his current tinnitus began during active duty, and has existed since that time.

The Board acknowledges that the September 2011 VA examiner opined that the Veteran's tinnitus could not be related to service without resorting to speculation.  However, in-service noise exposure has been established and the Veteran's lay statements indicate that his tinnitus began in service and has continued since that time.  See Jandreau, 492 F.3d at 1372.  Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran's tinnitus is related to his active military service.  Resolving any doubt in the Veteran's favor, therefore service connection for tinnitus is warranted.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

Right Ear Hearing Loss

As described above, impaired hearing is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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.  While the June 2011 private audiogram and September 2011 VA audiogram shows the Veteran has some level of hearing loss in his right ear, the hearing loss does not meet the levels described under 38 C.F.R. § 3.385 to be considered a disability for VA compensation purposes. 

As such, the Board finds that the evidence of record does not establish that the Veteran has a current right ear hearing loss disability for VA purposes, and the Veteran's claim must be denied.

Left Ear Hearing Loss

As noted above in the "Factual Background" section, the Veteran has been diagnosed with a left ear hearing loss disability for VA compensation purposes, and in-service noise exposure has been established.  What he must still show to substantiate this claim is that there is a causal connection between hearing loss and his in-service exposure to noise trauma.   

As to presumptive service connection for a chronic disease under 38 U.S.C.A. § 1112, a qualifying hearing loss disability in the left ear (as defined in 38 C.F.R. § 3.385) was not manifested in service and SNHL was not manifested in the first year following service.  The earliest documentation of a qualifying right ear hearing loss disability is in 2011, over forty years since separation from service.  Consequently, service connection for a hearing loss disability is not warranted on the basis that such disability became manifest in service and persisted, or on a presumptive basis. 

In the absence of in-service onset and post-service continuity of symptoms, what is left for consideration is whether the Veteran's current left ear hearing loss disability may be related in any other way to his in-service service exposure to noise trauma. The Board finds that the lay and medical evidence of record weighs against a finding of service connection, for the reasons below.

The September 2011 VA examiner opined the Veteran's left ear hearing loss was less likely than not caused by or a result of an event in the military service and this conclusion was based on an accurate factual foundation and supported by sound reasoning.  The examiner explained that, based on the Veteran's STRs and VA audiometry examinations, normal hearing was presented throughout service and based on current medical knowledge, noise induced hearing loss occurs immediately and is not delayed for "weeks, months, or years after the exposure event."  Accordingly, the Board finds that, read as a whole, the opinion is highly probative.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (examination reports are adequate when they sufficiently inform the Board of a medical expert's judgement on a medical question and the essential rationale for that opinion).  There is no medical opinion to the contrary in the record as to the cause of the Veteran's left ear hearing loss. 

In his February 2013 VA Form 9 appeal, the Veteran reported that the December 1970 examiner did not perform a medical exam during his separation examination.  The Board notes the Veteran is competent to report the circumstances of his separation examination and finds his report credible.  However there is other contemporaneous evidence of record supporting a finding that he did not have hearing loss in service.  His STRs do not contain any reports of hearing loss or trouble hearing while in service; the only competent medical opinion of record notes that if he did had noise induced hearing loss, it would have been observed by the Veteran in service immediately after noise exposure.  In contrast, there is an affirmative statement by the Veteran in his February 2013 VA Form 9 appeal that, at separation, he "did not realize [he] had any hearing loss" in service.  The Board notes that while a hearing loss disability (under 38 C.F.R. § 3.385) is not a simple medical condition that a lay person is competent to identify, the symptoms of general hearing loss (such as difficulty hearing others or noticing that one needs to ask others to repeat what they have said) are capable of lay observation, and the Veteran is competent to describe the occurrence, or lack of occurrence, of such symptoms.  See Jandreau, 492 F.3d at 1377.  Therefore, the Board finds that the Veteran's statement that he did not realize he had any hearing loss at separation is evidence that he was not experiencing any observable general hearing loss symptoms during service.  The Board also notes that while Veteran has reported that he experienced tinnitus in service and it has continued since service, he has not provided any statements reporting hearing loss in service and its continuance since service.

In the absence of competent and probative evidence that the Veteran's current left ear hearing loss is causally related to active service, in addition to the fact that the Veteran's level of hearing loss did not manifest in service and did not qualify as a disability for VA purposes until many years after separation, service connection must be denied.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (Board may consider "evidence of a prolonged period without medical complaint, along with other factors[.]").  The preponderance of the evidence is against the claim and, therefore, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107 (b).

The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached for either hearing loss claim.



ORDER

Service connection for tinnitus is granted.

Service connection for right ear hearing loss is denied.

Service connection for left ear hearing loss is denied.



____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs