Citation Nr: 1761078	
Decision Date: 12/29/17    Archive Date: 01/02/18

DOCKET NO.  15-29 820	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States









ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran served on active duty from December 1961 to December 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  The preponderance of competent and credible evidence shows that bilateral hearing loss for VA purposes was not demonstrated in service, that bilateral hearing loss was not compensably manifested within a year of separation from active service, and that there is no nexus between the current bilateral hearing loss for VA purposes and service, to include in-service noise exposure.

2.  The preponderance of competent and credible evidence shows that tinnitus was not demonstrated in service, that tinnitus was not compensably manifested within a year of separation from active service, and that there is no nexus between the current tinnitus and service, to include in-service noise exposure.





CONCLUSIONS OF LAW

1.  A bilateral hearing loss was not incurred in service, and bilateral hearing loss may not be presumed to have been so incurred in service.  38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).

2.  Tinnitus was not incurred in service, may not be presumed to have been so incurred in service, and was not caused or aggravated by a service-connected disability.  38 U.S.C. §§ 1101, 1112, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to notify and assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

VA's duty to notify was satisfied by the September 2013 VA Form 21-526EZ (application for disability compensation and related compensation benefits).  By his signature, the Veteran certified that he received the notice attached to the application titled, Notice to Veteran/Service Member of Evidence Necessary to Substantiate a Claim for Veterans Disability Compensation and Related Compensation Benefits.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist except for the adequacy of the April 2014 and July 2015 VA examination.  See Scott, 789 F.3d at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  

In a July 2014 notice of disagreement, the representative argued that the VA examiners rendered a negative nexus opinion based on the separation examination showing no hearing loss.  In the August 2015 VA Form 9, the representative argued that the VA examiners rendered a negative nexus opinion based on the absence of complaints of hearing loss and tinnitus in the service treatment records and that the VA examiners did not consider the Veteran's complaints of in-service noise exposure.  The Board has reviewed the examination reports and finds that in totality the July 2015 VA examiner's opinion was based on not just that a hearing loss for VA purposes was not manifested in service or that a hearing loss or tinnitus was not noted in the service treatment records.  The Board observes that the July 2015 VA examiner did indeed consider the complaints of in-service noise exposure by stating that she "is not denying exposure to noise."  Therefore, the Board finds the VA examinations adequate and will proceed with a decision on these matters.

Governing law and regulations

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty.  See 38 U.S.C.A. §§ 1110, 1131.

Service connection may also be warranted 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).

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  
 
Although hearing loss disability is not a disease specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection.  As discussed below, the Veteran's hearing loss disability has been described as sensorineural in nature.  Additionally, tinnitus has also been described as a disease of the nervous system and is deemed a chronic disease.  Fountain v. McDonald, 27 Vet. App. 258 (2015).  Accordingly, service connection may be granted on a presumptive basis for the sensorineural hearing loss and tinnitus if shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2017).

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).

The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury.  In order to show a 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."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran's claim.  See 38 C.F.R. § 3.303(b).

The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability.  In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Analysis

Bilateral hearing loss

The two VA audiological examination reports show that the Veteran has a bilateral hearing loss disability for VA purposes that is sensorineural in nature.  See 38 C.F.R. § 3.385.  Thus, the question is whether his current hearing loss is related to active service.  See 38 C.F.R. § 3.303.

The Veteran claims that his in-service noise exposure was from heavy weapons.  His DD Form 214 shows that his military occupational specialty was heavy weapons infantry.  Therefore, the Board finds that the Veteran had in-service noise exposure.

The Board has reviewed all service treatment records and the VA audiological examination reports.  The preponderance of competent and credible evidence shows that bilateral hearing loss for VA purposes was not demonstrated in service, that bilateral hearing loss was not compensably manifested within a year of separation from active service, and that there is no nexus between the current bilateral hearing loss for VA purposes and service, to include in-service noise exposure.

The Veteran's service treatment records show no hearing loss disability for VA purposes in service.  There were no in-service complaints pertaining to difficulty hearing.  An August 1961 pre-induction examination report reflects that hearing using whisper-voice testing was 15/15 bilaterally.  A September 1963 separation examination report reveals puretone thresholds (converted from American Standards Association (ASA) to International Standards Organization-American National Standards Institute (ISO-ANSI) values) as follows:

	

HERTZ




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

Simply put, the Veteran is not shown to have a hearing loss disability for VA purposes in either ear during service.  See 38 C.F.R. § 3.385.  There is no competent medical evidence that he had a compensable hearing loss in either ear within one year of active service.  38 C.F.R. §§ 3.303, 3.307, 3.309(a).

There are two VA medical nexus opinions.  The April 2014 VA examiner noted that the hearing thresholds from 500 to 6000 Hertz on discharge were well within normal limits bilaterally.  The April 2014 VA examiner determined that this data did not support a claim for service-connected hearing loss.

The July 2015 VA examiner provided a more thorough medical nexus opinion.   The examiner explicitly converted the results of a September 1963 separation audiogram from ISO units to ISO (ANSI) units.  The examiner noted that all hearing thresholds from 500 Hertz to 6000 Hertz were within normal limits bilaterally.  The examiner indicated that she was not denying exposure to noise in service but that she was stating that the in-service noise exposure did not result in a hearing loss that meets the criteria for service connection.  The examiner added that when evaluating the Veteran's current degree of hearing loss, contributions from his civilian occupation and aging process cannot be ruled out.

The July 2015 examiner further noted that in 2005 the Institute of Medicine concluded that based on current knowledge of cochlear physiology, there is insufficient scientific evidence for delayed-onset hearing loss secondary to military noise exposure.  The examiner indicated hearing loss should occur at the time of the exposure and that there is not sufficient evidence from longitudinal studies to determine whether permanent noise-induced hearing loss can develop long after cessation of noise exposure.  The examiner stated that the available anatomical and physiologic evidence suggests that delayed post-service noise-induced hearing loss is not likely.  The examiner concluded that there was no nexus between any current hearing loss and military service.

As noted above, the Board finds that in totality the July 2015 VA examiner's opinion was based on not just that a hearing loss for VA purposes was not manifested in service or that a hearing loss or tinnitus was not noted in the service treatment records.   The Board observes that the July 2015 VA examiner did indeed consider the complaints of in-service noise exposure by stating that she "is not denying exposure to noise."  The Board gives great probative weight to the opinion of the July 2015 VA examiner.

Neither the Veteran nor his representative asserts that he has had hearing loss since service.  In fact, the Veteran reported to the July 2015 VA examiner that his hearing concerns began 15 years ago.  Therefore, he is not claiming continuity of symptomatology.

As to the Veteran's claim that his bilateral hearing loss disability is related to active service, the Board notes that although laypersons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of hearing loss falls outside the realm of common knowledge of a layperson.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). 
In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs against finding that his current hearing loss disability is related to service.  Therefore, the preponderance of the evidence is against the claim, and it is denied.





Tinnitus

The two VA audiological examination reports show that the Veteran has tinnitus.  Thus, the question is whether his current tinnitus is related to active service.  See 38 C.F.R. § 3.303.

The Veteran claims that his in-service noise exposure was from heavy weapons.  His DD Form 214 shows that his military occupational specialty was heavy weapons infantry.  Therefore, the Board finds that the Veteran had in-service noise exposure.

The Board has reviewed all service treatment records and the VA audiological examination reports.  The preponderance of competent and credible evidence shows that tinnitus was not demonstrated in service, that tinnitus was not compensably manifested within a year of separation from active service, and that there is no nexus between the current tinnitus and service, to include in-service noise exposure.

The Veteran's service treatment records show no complaints of ringing in the ears or diagnosis of tinnitus.  At the October 1963 separation examination, the ears were normal.  The Veteran denied any history of ear, nose, or throat trouble or "running ears."  

The Veteran has provided contradictory information on when he first began to experience tinnitus.  At the April 2014 VA examination, he reported that he has been experiencing constant tinnitus for over 50 years.  At the July 2015 VA examination, he reported that his tinnitus had a gradual onset with his best estimate of onset being approximately 15 years ago when his hearing concerns began.  

The April 2014 VA examiner opined that it is at least as likely as not that the tinnitus is associated with the hearing loss.  The April 2014 VA examiner further opined that it is less likely than not that the tinnitus was caused by or the result of military noise exposure.  The examiner's basis was that the excellent hearing through 6000 Hertz on the Veteran's discharge examination indicates that he did not suffer high-frequency cochlear damage.  The examiner concluded that it is more likely than not that the tinnitus is attributable to factors involving noise after leaving service.

The July 2015 VA examiner opined that it is less likely than not that the tinnitus was caused by or a result of military noise exposure.  The examiner indicated that the best estimate of onset of tinnitus is approximately 15 years ago when his hearing concerns began.  The examiner noted that this onset was several decades post-military separation.  The examiner added that the Veteran denied any ear, noise, or throat troubles on his separation examination.  The examiner further stated that the hearing thresholds were normal at separation and that the service treatment records are negative for any concern, diagnosis, or treatment of tinnitus during service.  

The Veteran is claiming continuity of symptomatology, and the representative argued in the July 2014 notice of disagreement that service connection should be granted based on continuity of symptomatology.  The April 2014 examiner rejected this claimed continuity of symptomatology in rendering a negative medical nexus opinion.  The Veteran is competent to report continuity of symptomatology, but to the extent that the Veteran asserts he has had tinnitus since service, the Board does not find his reports to be persuasive.  As noted above, the Veteran has provided contradictory information on when his tinnitus began.  The Board finds that the absence of complaints of tinnitus at the time of his separation from service and his inconsistent reports of when his tinnitus began weigh against the claim.

The Board finds that the opinions of the competent health care providers to be the most probative evidence of record as to the relationship between the Veteran's tinnitus and active service.  As noted, the examiners took into account the full record, including the Veteran's assertions.  For these reasons, the Board finds that these opinions ultimately outweigh the Veteran's lay reports of continuity of symptomatology since service.  With regard to secondary service connection, as determined above, the Veteran is not service connected for a bilateral hearing loss disability.  Accordingly, Wallin element (2), a service-connected disability, is not met.

In summary, for the reasons and bases set forth above, the Board concludes that that the most credible and probative evidence weighs strongly against finding that his tinnitus is related to service.  Therefore, the preponderance of the evidence is against the claim, and it is denied.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.







____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs