Citation Nr: 1756855	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  11-18 494A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel





INTRODUCTION

The Veteran had active service from August 1977 to August 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Los Angeles, California, that denied the claims captioned above.

This matter was previously before the Board in August 2015 at which time it was remanded so that the Veteran could be scheduled for a Board hearing.  In September 2017, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided.  A transcript of that hearing has been associated with his claims file.  The case is now returned to the Board. 

The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  All records in such files have been considered by the Board in adjudicating this matter.  


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss disability did not manifest until many years following his period of active service, is not shown to be otherwise related to service, and cannot be presumed related to service. 

2.  The Veteran's tinnitus did not manifest until many years following his period of active service, and is not shown to be otherwise related to service.


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1131, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for the establishment of service connection for tinnitus have not been met.  38 U.S.C. §§ 1131, 5103, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).
 In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

By letters dated in January 2010, March 2010, April 2010, and July 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.  He was also provided with requisite notice with respect to the Dingess requirements.  As such, the Board finds that the notification requirements of the VCAA have been satisfied.

Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's relevant service, VA, and private medical treatment records have been obtained.  There is no indication of any additional, relevant records that the RO failed to obtain.  The Veteran has been medically evaluated.  In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. 

Service Connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic diseases, such as certain organic diseases of the nervous system, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2017).

For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 CFR § 3.385.  The Board recognizes the existence of a current bilateral hearing loss disability in this case.  At the time of the August 2010 VA examination, pure tone thresholds met the requirements of § 3.385.  The VA examination report also shows a current diagnosis of tinnitus.  The question with regard to both of these claims is the etiology of these disabilities.

During the September 2017 Board hearing, the Veteran asserted that he was exposed to acoustic trauma during his period of active service in his duties as a tactical communications and microwave technician.  He described noise exposure from firing weapons during basic training, being around loud generator noise, running noisy radio sets, and being around loud truck noise while riding near the exhaust mechanisms.  He added that he first noticed experiencing tinnitus in service, but that he began noticing bilateral hearing loss on a more gradual basis soon after service.

Having carefully considered the evidence of record, the Board must conclude that service connection for bilateral hearing loss and tinnitus is not warranted.  The only competent medical evidence related to the etiology of the hearing loss or tinnitus is negative, and there is essentially no positive medical evidence to support the claims

First, a review of the Veteran's service treatment records reveals that treatment records are negative for any treatment for or findings suggestive of a chronic hearing disability of either ear.  The record reflects that his service entrance report of medical examination dated in August 1977 shows clinical evaluation of the ears was within normal limits.  Audiological evaluation measuring pure tone thresholds, in decibels, was as follows:




HERTZ



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

In the associated report of medical history, the Veteran indicated that he had never had any hearing loss or ear trouble of any sort.

A service separation report of medical examination does not appear to be of record, however, a re-enlistment report of medical examination dated in May 1982 shows clinical evaluation of the ears was within normal limits.  Audiological evaluation measuring pure tone thresholds, in decibels, was as follows:




HERTZ



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

In the associated report of medical history, the Veteran, again, indicated that he had never had any hearing loss or ear trouble of any sort.  As can be shown, there is very little indication of a threshold shift from the time he entered service to the time he left.  In short, while the Board can accept the Veteran's assertions of acoustic trauma in service, the medical evidence does not support his contention that such trauma resulted in an actual loss in hearing.  

Approximately 30 years later, in January 2010, the Veteran filed a claim of entitlement to service connection for bilateral hearing loss and tinnitus.  Following his claim for benefits, he underwent a VA examination in August 2010, wherein he provided a history of noise exposure consistent with that as set forth above.  He added that his occupational noise exposure included machines in a manufacturing plant with the use of hearing protection.  He denied any recreational noise exposure.  Physical examination revealed a mild to severe sensorineural hearing loss in the right ear and a mild to moderately-severe sensorineural bearing loss in the left ear, as well as, a diagnosis of tinnitus.  

Following examination of the Veteran, the VA examiner opined that, since the Veteran's hearing sensitivity was within normal limits upon his discharge from service, it was less likely than not that his current hearing loss was due to his active service.  The examiner explained that per the American College of Occupational and Environmental Medicine, most scientific evidence indicates that previously exposed ears are not more sensitive to future noise exposure, and that hearing loss due to noise did not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise was discontinued.  The examiner also concluded that there were no documented complaints of tinnitus either during active service or at discharge, therefore, the cause of the tinnitus was not noise exposure during active service.

In November 2015, the Veteran submitted a number of treatises describing the maximum recommended daily decibel level exposure, along with the typical decibel level exposure emitted by certain trucks and heavy equipment.  

The Board recognizes that the Veteran has testified to experiencing hearing loss and tinnitus that was caused by his noise exposure in service.  Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation.  38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau, 492 F.3d at 137; see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence).  

However, while the Veteran is competent to offer this testimony, the Board does not find it to be as probative as the opinion of the competent medical examiner.  The medical examiner has expertise in the area of hearing loss and tinnitus and experience with diagnosis and evaluation of these disabilities.  This examiner has deemed both the Veteran's hearing loss and tinnitus as definitively unrelated to any in-service noise exposure, a finding that is not lay observable.  The greater probative value is given to the medical opinion. 

Moreover, while a medical article can provide important support when combined with an opinion of a medical professional if the treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion, the Board cannot assign this evidence significant probative weight as it does not establish a correlation between this particular Veteran's hearing loss and tinnitus and his period of active service.  Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998).
 
Given the medical evidence against the claim, the Board therefore, finds that the preponderance of the evidence is against the Veteran's claims for service connection for bilateral hearing loss and for tinnitus. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. 38 C.F.R. § 3.102 (2017); Obert v. Brown, 5 Vet. App. 30, 33 (1993).



ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
B. T. KNOPE 
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs