Citation Nr: 1753376 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-13 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1965 to March 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2013, a travel board hearing was held before the undersigned in Buffalo, New York. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in February 2015 for further development of the evidence. This has been accomplished, and the case has been returned for further appellate consideration. FINDINGS OF FACT 1. Bilateral hearing loss was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 2. Tinnitus was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. CONCLUSIONS OF LAW 1. Bilateral hearing loss was neither incurred in nor aggravated by service nor may sensorineural hearing loss be presumed to have been. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Tinnitus was neither incurred in nor aggravated by service nor may it be presumed to have been. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duty to notify was satisfied by a letter dated in February 2011. See 38 U.S.C §§ 5102, 5103, 5103A (201); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination, most recently pursuant to the Board's February 2015 remand, in May 2015. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2017). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then, generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss or tinnitus, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's 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). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 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. § 5107(b) (2014); 38 C.F.R. § 3.102 (2017). 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 veteran 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). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Bilateral Hearing Loss and Tinnitus The Veteran contends that service connection should be established for bilateral hearing loss and tinnitus that, he believes, are the result of acoustic trauma to which he was exposed during service. It is pointed out that the Veteran served as an artillery crewman in service and that he is presumed to have been exposed to excessive noise. During testimony at the Board hearing in 2013, he stated that, while he had worked after service in a steel factory, during that time he had been provided with hearing protection and that, while he did participate in hunting at one time, he had not done so for many (10 to 15) years. Service connection for impaired hearing shall not be established unless the hearing status meets pure tone and speech recognition criteria. Hearing status will be considered to be a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 hertz is 40 decibels or greater; thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores used in the Maryland CNC tests are less than 94 percent. 38 C.F.R. § 3.385. "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Although disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Id. NOTE: Prior to November 1967 service departments consistently used American Standards Association (ASA) units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses International Standards Organization (ISO/ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, VA must convert the ASA measurements recorded in service to the comparable ISO (ANSI) measurements. The Board has converted the ASA units to ISO units in parentheses below. Review of the Veteran's STRs shows that on examination at entry into service, pure tone audiometric findings were as follows: Hertz 500 1000 2000 3000 4000 Right ear 10 (25) -5 (5) -5 (5) -5 (5) -5 (0) Left ear 5 (20) 0 (10) 10 (20) 0 (10) 10 (15) STRs showed that he had no complaint or manifestation of hearing loss or tinnitus while on active duty. On examination for separation from service audiometric evaluation showed pure tone thresholds to be as follows: Hertz 500 1000 2000 4000 Right ear 0 (15) 0 (10) 5 (15) 10 (15) Left ear -5 (10) 0 (10) 0 (10) 5 (10) Post-service treatment records show that the Veteran was seen at a VA outpatient clinic in January 2000. At that time, he reported complaints of tinnitus in the left ear six months earlier as well as decreased hearing in the left ear over the past few months. Hearing loss was also noted in the right ear, but was worse on the left. It was noted that he had worked at a steel plant and currently worked as a truck driver. The impressions were tinnitus of the left ear, with hearing loss, and poor speech discrimination. An audiology evaluation was recommended. This was accomplished in March 2000 when the diagnoses were sensorineural hearing loss and tinnitus. At that time, it was noted that the Veteran had a history of noise exposure at work and in service. He currently wore ear protection at work. Follow-up evaluations from 2001 to 2010 continued to show sensorineural hearing loss and tinnitus. An examination was conducted by VA in May 2011. Following audiologic evaluation and examination, the examiner opined that it was not at least as likely as not that the Veteran's hearing loss was due to military noise exposure. The rationale was that the Veteran's hearing was normal at separation and the Veteran had an extensive history of occupational noise exposure as a civilian. Regarding tinnitus, the examiner opined that this was not likely due to military noise exposure. The rationale was that hearing was normal at separation from service and also that the Veteran had an extensive history of occupational noise exposure as a civilian. In addition, the Veteran had indicated that the tinnitus began 10 to 15 years previously, which is over 28 years after the Veteran's discharge from service. In a November 2012 statement, a VA physician opined that it was at least as likely that the Veteran's hearing loss was due to service as a mortar and artillery person. The physician concluded that "I am certain your condition is related to your service." An examination was conducted by VA in May 2015. After evaluation and examination of the Veteran, the examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event of military service. The rationale was that the hearing loss was more likely associated with ten years of employment in a steel plant followed by fifteen years as a truck driver. Regarding tinnitus, the examiner opined that the tinnitus was at least as likely as not a symptom associated with hearing loss, not service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In this case, while there is a 2012 definitive statement from a VA physician that supports the Veteran's contention that his hearing loss and tinnitus are related to acoustic trauma he sustained while on active duty, the basis for the opinion was not provided. Alternatively, the two statements, dated in 2011 and in 2015, that are not in support of the Veteran's contentions give clear rationale for their negative nexus opinions: specifically, the Veteran's exposure to acoustic trauma in the many years following separation from service (a combined 25 years) and the fact that the Veteran did not have complaints of either hearing loss or tinnitus until many years after separation. The Board finds that the two negative nexus opinions are more persuasive than the 2012 statement in support of the Veteran's contentions. Simply put, the 2012 statement provides no rationale for the conclusion. Moreover, the VA outpatient treatment records showing early complaints of hearing loss and tinnitus reflect that these were of only six months duration in 2000, many years after the Veteran's separation from service in 1968. While it is true that remote acoustic trauma may cause hearing loss and tinnitus, the Veteran's reports of noise exposure for many years following service persuasively support the conclusions that this noise exposure is the most likely etiology of the Veteran's hearing loss and tinnitus. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claims for service connection for bilateral hearing loss and tinnitus, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs