Citation Nr: 1756582 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-32 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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 ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Navy from April 1983 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In February 2017, the Board remanded the Veteran's issues on appeal for additional development. The Board finds substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. The Veteran's bilateral sensorineural hearing loss did not manifest in service, within the one year presumptive period or for years thereafter, and is unrelated to any noise exposure during his military service. 2. The Veteran's tinnitus did not manifest in service, within the one year presumptive period or for years thereafter, and is unrelated to any noise exposure during his military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1131, 1132, 1133, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for establishing entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1131, 1132, 1133, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In September 2010, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims held that tinnitus is a "chronic disease" under 38 C.F.R. § 3.309(a) where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Bilateral Hearing Loss and Tinnitus The Veteran in this case contends that his hearing loss and tinnitus began as a result of his duties while in service. First, the Board acknowledges that the Veteran has a current diagnosis of bilateral hearing loss and tinnitus, as there is evidence of these current disabilities. The March 2017 examination shows that the Veteran has bilateral sensorineural hearing loss as defined by 38 C.F.R. § 3.385 (2017). In addition, the Veteran has also offered competent, credible testimony that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). He has therefore met the current disability requirements for both claims. Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service. Specifically, in his May 2011 Notice of Disagreement, the Veteran contends he suffered acoustic trauma as an aviation ordinance handler as he was on the flight line and in close proximity to power units and running jet engines. In this regard, the Veteran's DD 214 indicates that he served aboard the USS America, an aircraft carrier, for over two years. His primary military occupation specialty was an electronic equipment repairman. As the Veteran's statements are consistent with his DD 214, the Board finds that the Veteran's assertion of in-service noise exposure is credible and consistent with his service. See 38 U.S.C.A. § 1154(b). Consequently, the only remaining question is whether the Veteran's current bilateral hearing loss and tinnitus are related to his in-service noise exposure. In September 2010, a VA audiologist opined, after examining the Veteran and reviewing the claims file, that the Veteran's hearing loss and tinnitus are not as least as likely as not related to his military service. She reasoned that the Veteran indicated normal hearing bilaterally upon enlistment into the military and normal hearing bilaterally upon separation from the military. In addition, the audiologist indicated there were no complaints of hearing loss or tinnitus in the Veteran's records, and the Veteran denied any hearing loss upon his enlistment and separation questionnaires. The Veteran was afforded another VA examination in March 2017. This VA audiologist opined that the Veteran's hearing loss and tinnitus were not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The Veteran's hearing thresholds for both ears were normal at his entrance and separation examinations. The audiologist also addressed the Veteran's representative's arguments related to the Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006) report, noting that the "Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be casually related to that noise exposure if hearing was normal immediately after the exposure." See March 2017 VA Examination, p. 5. In addition, specifically, with respect to the Veteran's hearing loss, the audiologist reasoned that hearing thresholds for both ears were normal at the entrance and separation examinations. The Veteran also stated that he did not notice any trouble with his hearing and does not feel he has hearing loss. Id. at 4. The audiologist opined that even if the Veteran did notice hearing loss, "current research does not support the notion of delayed onset of noise induced hearing loss." Id. With respect to the Veteran's tinnitus, the audiologist noted that the Veteran only reported an onset of tinnitus at least three to four years after separating from the military. Id. at 5. The audiologist reasoned that "current research does not support the notion of delayed onset of noise induced tinnitus." Id. Based on the above, the Board finds that the preponderance of the evidence is against the claim. As the March 2017 VA opinion was provided by a VA audiologist and is supported by a reasoned opinion that is consistent with the evidence of record, the Board affords it significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). As directed by the February 2017 remand, the examiner discussed whether noise exposure in service was the cause of the Veteran's hearing impairment or tinnitus, or whether such hearing loss and tinnitus began during or was initially manifested during military service, or within one year after discharge. The rationale, while not extensive, accurately portrayed the evidence and addressed the relevant facts. It is clear that the examiner reviewed the entire claims file and considered the Veteran's contentions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). As to the September 2010 VA examination, as noted in the February 2017 remand, the VA examiner's opinion was not adequate, as it relies solely on the lack of any hearing loss or tinnitus disability during military service and did not consider the Veteran's noise exposure during military service or his lay statements regarding continuity of symptomatology. See Hensley v. Brown, 5 Vet. App. 155, 199 (1993). While this deficiency was sufficient to require a new examination, considering that the opinion was consistent with the service treatment records and provided by a certified VA audiologist, it cannot be said that the opinion is entirely without merit. Here, then, while the Board will not assign significant weight to the September 2010 opinion, the Board finds that the opinion does bolster the March 2017 opinion. The Veteran's service treatment records do indicate that the Veteran did experience a shift in hearing while in service. However, the Veteran's hearing conservation data, conducted as part of the Veteran's separation examination that compared the Veteran's October 1983 and February 1986 audiological examinations found no significant threshold shift (STS) of 20 decibels or greater. Additionally, while service treatment records indicate a finding of 30 decibels at 6000 Hertz in the Veteran's February 1986 separation examination, no other frequencies of 500, 1000, 2000, 3000, or 4000 Hertz were 26 decibels or greater. Therefore, as the audiologists in the Veteran's September 2010 and March 2017 examinations indicated, the Veteran did not have hearing loss or tinnitus for VA purposes when he left service in April 1986. To the extent that the Veteran has offered his opinion that any change in decibel readings is sufficient evidence of in-service, noise-induced hearing loss or tinnitus, the Board finds the March 2017 opinion to be more probative. The examiner there, a certified audiologist, considered all the evidence of record and provided a thorough rationale for her conclusions. In sum, the most probative evidence of record shows that the Veteran's bilateral hearing loss and tinnitus did not have its onset during service or for many years thereafter. To the extent the Veteran's current hearing loss may be considered a chronic disease, he has not met the criteria for presumptive service connection under 38 C.F.R. § 3.309(a) as the evidence of record indicates that the Veteran did not experience hearing loss until many years after service. The Board also observes that there is no evidence to show that hearing loss or tinnitus existed or was "noted" in service or discharge. Thus, the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology are not for application. Accordingly, even assuming the Veteran experienced acoustic trauma in service, his claims must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs