Citation Nr: 1753369	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-06 322	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. I. Tissera, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1973 to June 1978 and from June 1978 to August 1984.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.


FINDINGS OF FACTS

1.  Hearing loss for VA purposes was not manifested during active service or within one year from the date of separation from service and current hearing loss is not related to active service.

2.  Tinnitus was not manifested during active service or within one year from the date of separation from service and current tinnitus is not related to active service.


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was not incurred in or aggravated by active service, and an organic disease of the nervous system may not be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2.  Tinnitus was not incurred in or aggravated by active service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The duty to notify has been met.  Neither the Veteran nor his representative has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In light of the foregoing, nothing more is required.

The duty to assist includes assisting the claimant in the procurement of relevant records.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  The RO associated the Veteran's service and VA treatment records with the claims file.  All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  VA is unaware of any outstanding pertinent records which have not been associated with the claims file.  As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law.  38 C.F.R. § 3.159(c)(4).  In this case, the Veteran was provided with a VA examination in May 2013.  The examiner reviewed the medical evidence of record in conjunction with the examination and conducted a thorough medical examination of the Veteran.  The Veteran's pertinent symptomatology was recorded sufficiently to accurately adjudicate the claim.  Based on the foregoing, the Board finds the examination report to be thorough, complete, and sufficient base upon which to reach a decision on the Veteran's claim.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Since VA has obtained all relevant identified records and provided an adequate medical examination, its duty to assist in this case is satisfied.


II.  Service Connection

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. 
§ 3.303(a).  Service connection requires competent evidence showing: (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).  

For the showing of 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.  If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim.  38 C.F.R. § 3.303(b).  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).

Service connection for certain listed chronic diseases may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty.  This presumption is rebuttable by affirmative evidence to the contrary.  
38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

While hearing loss and tinnitus are not diseases listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection.  

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013);  Barr v. Nicholson, 21 Vet. App. 303 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Additionally, any disability which is proximately due to, or results from, another disease or injury for which service connection has already been granted shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected.

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  For the showing of 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."  38 C.F.R. § 3.303(b).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 U.S.C. § 1113(b);  38 C.F.R. § 3.303(d);  Cosman v. Principi, 3 Vet. App. 503 (1992).

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006);  but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)(evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990);  38 U.S.C. § 5107(b).

In addition to the basic service connection principles outlined above, service connection for hearing loss disability is not granted unless the claimed hearing loss is of a particular level of severity.  For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  
38 C.F.R. § 3.385.  

III.  Hearing Loss

The Veteran asserts in his claim submissions and statements that he sustained acoustic trauma when he was exposed to the sounds of a grenade simulator, generators, gunfire, and aircraft while in service as a medical specialist in a combat unit.  While the Veteran served during the Vietnam War period, his foreign deployment was in Germany.  The Veteran reports he did not see combat while in service.

The Veteran's service treatment records (STRs) contain several medical examination reports that include audiograms.  An audiogram from July 1977 shows hearing within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
20
15
10
15
LEFT
5
10
10
10
10

The Veteran did not complain of any hearing loss at that time.  

Another audiogram from June 1979 shows hearing within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
5
10
LEFT
10
5
5
5
5

There are no notes or remarks indicating the Veteran complaining of any hearing loss at that time.  

The Veteran's next audiogram is in August 1980, which shows hearing within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
5
10
10
LEFT
15
10
10
0
5

The Board acknowledges that the Veteran had a 55 decibel (dB) reading at the 6,000 hertz (Hz) level in the right ear, which indicates some hearing loss.  However, the range above 4,000 Hz is not considered for VA disability purposes.  There is no indication of the Veteran complaining of hearing loss at that time.  

The Veteran's July 1981 audiogram again shows hearing within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
10
10
LEFT
15
5
5
	5
0


A subsequent audiogram in August 1981 again shows hearing within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
5
10
10
LEFT
15
10
10
	0
5

During the Veteran's separation exam in March 1984, the Veteran's audiogram once again shows hearing within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
15
LEFT
10
0
5
	0
10

There are no remarks or notes indicating the Veteran complains of hearing loss during the separation exam.  

During an enlistment exam for the Reserves in March 1987, the Veteran's audiogram shows hearing within normal limits:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
5
5
5
LEFT
5
5
5
	5
0

The Board acknowledges that the Veteran had a 30 dB reading at the 6,000 Hz level in the right ear, which indicates some hearing loss.  However, the range above 4,000 Hz is not considered for VA disability purposes.  

The Veteran's STRs show the Veteran never complains, receives treatment, or receives a diagnosis for hearing loss during service, and his hearing is found to be within normal limits throughout the entire period of service.

The Veteran submitted copies of health questionnaires from December 2007 and March 2010 in connection with treatment for back pain treatment.  In both health questionnaires, when asked to mark any current issues, the Veteran marked "No" for "Hearing loss or Ringing."

In April 2012, the Veteran sought treatment at the Richmond VA Medical Center.  Among the Veteran's active medical problems, hearing loss and tinnitus are not listed on the medical report.

During the May 2013 VA examination, the examiner found the following examination results:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
25
40
40
LEFT
40
30
20
	20
20

The Veteran's average decibel level for the right ear is 32.5 dB and the average for the left ear is 22.5 dB.  His speech discrimination score is 96 percent in the right ear and 94 percent in the left ear.  The examiner found the Veteran's acoustic immittance, ipsilateral acoustic reflexes and contralateral acoustic reflexes to be normal, bilaterally.  The examiner diagnosed bilateral sensorineural hearing loss.  Based on a review of all of the medical evidence, the examiner opined that the Veteran's hearing loss is less than likely caused by or a result of an event in military service.  In support of this opinion, the examiner observed that, per the Veteran's medical records, his hearing was normal in March 1987, after the Veteran's dates of military service from August 1973 to July 1984.

In May 2013, the Veteran saw a private physician and had an audiogram and speech discrimination exam performed.  The private physician diagnosed mild to moderate sensorineural hearing loss in the right ear and asymmetrical mild to moderate sensorineural hearing loss in the left ear.  The results are consistent with the findings of the May 2013 VA examination.

The Board acknowledges and concedes the Veteran was exposed to noise trauma during service, as the Veteran is competent to report the events that occurred in service.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board also finds the Veteran's statements to be credible, as his Form DD-214 notes his MOS as a medical specialist and he received a marksman qualification badge in the use of the M-16 rifle.  However, the preponderance of the evidence is against the claim for service connection for hearing loss.  The evidence does not show in-service onset of hearing loss, sensorineural hearing loss to a compensable degree within a year of separation, a continuity of symptomatology since service, or a nexus between current hearing loss and in-service noise exposure.  Thus, there is no doubt to be resolved and service connection for hearing loss is not warranted.  38 U.S.C. 
§ 5107(b); 38 C.F.R. § 3.102.

IV.  Tinnitus

The Veteran is seeking service connection for tinnitus, which is a wholly subjective disorder.  Due to the subjective nature of tinnitus, the Board and medical providers must rely on the statements of the Veteran to determine the onset and continuation of the disorder.  A veteran is competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation."  Charles v. Principi, 16 Vet. App. 370 (2002); see also Horowitz v. Brown, 5 Vet. App. 217 (1993).

Based on the available evidence, the Board finds that the preponderance of the competent and credible evidence is against finding that service connection for tinnitus is warranted.  VA concedes that the Veteran was exposed to acoustic trauma in service, and therefore the "in-service injury" requirement is met.  Additionally, the Veteran currently has tinnitus, thus the "current disability" requirement is met.  However, missing from the evidence is the necessary connection (nexus) between the current disability and the in-service injury.

Throughout his STRs, including treatment records during his period in the Reserves, the Veteran never complains of ringing or tingling in his ears.  After his discharge from service, the Veteran denies complaints of ringing in his ears in the December 2007 and March 2010 health questionnaires when seeking medical treatment for his back pain.  The examiner who conducted the May 2013 VA examination acknowledges that the Veteran reports recurrent tinnitus and opines that the Veteran's tinnitus is at least as likely as not a symptom associated with his diagnosed clinical hearing loss, as tinnitus is known to be a symptom associated with hearing loss.  However, the examiner opined that the Veteran's hearing loss is less likely than not caused by or a result of an event in military service.

As the Board must rely in large part on the consistency of the Veteran's statements regarding a wholly subjective disorder like tinnitus, the Board finds that there is no credible evidence establishing a continuity of symptomatology to service, as the Veteran's statements regarding onset and continuation of tinnitus have generally placed the onset of symptoms many years after service.  The Board also notes that there is also no medical evidence establishing a link between his current tinnitus and his service.  In fact, the only medical opinion of record found a relationship to service unlikely.

In sum, the Veteran was exposed to acoustic trauma in service and currently suffers from bilateral tinnitus.  However, the record does not contain credible lay or medical evidence of a positive link (nexus) between his current disorder and his service.  Therefore, service connection for tinnitus is not warranted.  All evidence has been considered and there is no doubt to be resolved.  38 U.S.C. § 5107(b); Derwinski, 1 Vet. App. at 55.



ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs