Citation Nr: 1800625 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-12 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1970 to December 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. A hearing loss disability was not manifested in service, sensorineural hearing loss (SNHL) was not manifested within one year following the Veteran's separation from service; and the preponderance of the evidence is against a finding that his current bilateral hearing loss is related to his service. 2. Resolving doubt in the Veteran's favor, tinnitus is shown to have begun in service and continued since service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). Legal Criteria, Factual Basis, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include SNHL and tinnitus) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For VA compensation 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 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim. The Veteran's listed military occupational specialty (MOS) was light weapons infantryman. His DD Form 214 reflects that he served in Vietnam and received a Combat Infantryman Badge. On September 1969 pre-enlistment examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) N/A 10 (15) LEFT 10 (25) 10 (20) 15 (25) N/A 10 (15) On May 1970 enlistment examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -10 (0) 0 (10) N/A 0 (5) LEFT 0 (15) -10 (0) 0 (10) N/A 5 (10) [The figures in parentheses in the above charts represent ISO (ANSI) units, and are provided for data comparison purposes as it is unclear whether the audiometry testing was done using current American Standards Association (ASA) measurements or ISO (ANSI) measurements.] On November 1971 separation examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 N/A 0 LEFT 0 0 0 N/A 0 On February 2005 employment examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 15 15 35 LEFT 0 0 15 25 35 On February 2006 employment examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 0 35 LEFT 0 0 15 15 35 On June 2007 employment examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 20 40 LEFT 0 0 5 35 50 On July 2008 employment examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 20 20 45 LEFT 10 0 15 30 45 In a statement submitted in June 2012, the Veteran's spouse reported that the Veteran had always had trouble with ringing in his ears, but she noted that it had been getting worse. In a July 2012 VA audiology consultation the Veteran reported gradual hearing loss over the past several years and that while he noticed hearing loss, he did not feel it was significant. He also reported experiencing constant bilateral tinnitus for the past five years. It was noted that he was not interested in hearing aids at the time of the consultation. On November 2012 VA audiology examination the consulting provider opined that it was less likely than not that the Veteran's hearing loss or tinnitus was related to military service. She noted that the Veteran exited service with normal hearing sensitivity and that there were no upward trends or shifts in his hearing thresholds during service. The consulting provider based her opinion on a review of the record as well as supporting medical literature of the American College of Occupational and Environmental Medicine and the 2005 Institute of Medicine Report. The consulting provider noted that hearing loss from hazardous noise is immediate, not delayed, and that 41 years had passed between the Veteran's service and treatment in 2012. The audiologist also noted that there was no continuity of care shown. Additionally, the consulting provider noted the Veteran's July 2012 audiology consultation in which the Veteran indicated that tinnitus began approximately five years prior to that consultation (approximately 36 years after the Veteran's service). In his September 2013 notice of disagreement, the Veteran questioned the conclusions reached by the VA examiner regarding the delayed onset of hearing loss. In his March 2014 VA Form 9, Substantive Appeal, the Veteran disputed the VA examiner's notation that his tinnitus had only started five years previously. He reported that he just started noticing it more when he retired from work and was in a quiet setting more frequently. On April 2014 private audiometry revealed that puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 30 35 50 LEFT 10 10 30 55 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. The provider noted that the Veteran alleged experiencing an onset of tinnitus and "dullness in hearing" while in service. The provider noted that the Veteran's post-service employment was in a factory for 25 years. The Veteran reported wearing hearing protection as mandated by his employer. He reported not wearing hearing protection while in service. The provider opined that it was more likely than not that his current high frequency sensorineural hearing loss and associated tinnitus were caused or aggravated by firearm noise and other explosive noise exposure while in service. The provider noted that the Veteran's left ear hearing loss was worse than his right ear hearing loss and opined that such a finding was characteristic of a right handed firearm user. Service Connection for Bilateral Hearing Loss It is not in dispute that the Veteran has a bilateral hearing loss disability (such is shown by private audiometry in April 2014). His MOS in service was light weapons infantryman. Additionally, the Veteran served in Vietnam and received a Combat Infantryman Badge. Therefore, the Board finds that by virtue of his MOS and his combat service that he was exposed to hazardous levels of noise in service. 38 U.S.C. § 1154(b). Consequently, what remains necessary to substantiate his claim of service connection for bilateral hearing loss is competent evidence that his hearing loss is related to his service/noise trauma therein. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran did not report, or seek treatment for, hearing loss during service or postservice prior to 2012, and his hearing was normal on service separation examination. Notably, employment-related audiometry from 2005-2008 (over 30 years after separation from service) show only mild hearing loss. Consequently, service connection for a hearing loss disability on the basis that such disability manifested in service and has persisted since or on a presumptive basis (for SNHL as a chronic disease under 38 U.S.C. § 1112) is not warranted. While he has attempted to substantiate a continuity of symptomatology theory of entitlement (see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d. 1331, 1338-40 (Fed. Cir. 2013)) as SNHL is a chronic listed disease in 38 C.F.R. § 3.309(a) (as an organic disease of the nervous system), continuity of symptomatology is not shown. Therefore, service connection for the SNHL on continuity of symptomatology theory of entitlement is not warranted. Regarding nexus, the Board places the greatest weight of probative value on the opinion of the November 2012 VA consulting provider who opined that the Veteran's hearing loss disability is unrelated to his service/any noise trauma therein. The examiner is a medical professional competent to offer the opinion; the provider expressed familiarity with the Veteran's medical history, and the opinion is supported by adequate rationale that cites to accurate factual data, including the absence of related complaints or findings during service and for a long period of time thereafter. It also discusses pertinent medical literature that supports the conclusions reached. The opinion is probative evidence in this matter, and is persuasive. The Board has considered the April 2014 private audiology examination. However, the opinion provided by this audiologist relies on recent accounts by the Veteran which are inconsistent with earlier reports (offered in conjunction with his claim for VA benefits) alleging symptom onset during active service and continuing from that point which are contradicted by contemporaneous clinical and lay evidence reporting a delayed onset of hearing loss. As such, these statements are found to be not credible, and therefore an opinion reached on the basis of such statements lacks probative value. Therefore, the Board finds the November 2012 audiology examination is persuasive in this matter. The Board notes that the Veteran has questioned the findings made by the November 2012 VA audiologist. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, interpreting and applying findings from medical literature falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places little weight of probative value on the Veteran's assertions in this regard. The preponderance of the evidence is against the claim, accordingly, the appeal in this matter must be denied. Service Connection for Tinnitus It is not in dispute that the Veteran has tinnitus. Unlike a hearing loss disability, which must be established by specific testing, tinnitus is a disability the existence of which is established by self-reports (by the person experiencing it); and is generally incapable of clinical confirmation. On July 2012 audiology consultation the Veteran indicated that he was experiencing "constant bilateral tinnitus for the past 5 years." By this account his tinnitus did not begin until approximately 36 years after service. However, in his September 2013 notice of disagreement, he explained that the statement as written in July 2012 was inaccurate and that he only started noticing tinnitus more consistently five years ago, after he retired, but that he had been experiencing ringing in his ears to some extent since service. Additionally, in a June 2012 statement, the Veteran's spouse provided her observations that the Veteran's tinnitus had recently become worse, but the Veteran had been experiencing tinnitus for a long time. Moreover, the Veteran reported to the April 2014 private audiologist that tinnitus began during service and had continued since that time. Although the record contains some conflicting statements regarding the onset of tinnitus, the majority of the Veteran's lay statements reflect that he has experienced tinnitus since his service. Therefore, the Board resolves any reasonable doubt in the Veteran's favor and finds that the evidence is at least in equipoise that he has experienced continuity of tinnitus since service. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection tinnitus, pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter and service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs