Citation Nr: 1801260 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-13 606 DATE Advanced on the Docket THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to in-service noise exposure. 2. The Veteran does not have a current diagnosis of tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1960 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In September 2017, the Veteran testified at a Travel Board hearing before the undersigned, and a transcript is of record. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. Please note that 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). Veterans Claims Assistance Act of 2000 As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). The Veteran has not 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). As such, the Board will now review the merits of the Veteran's claims. Law and Analysis The Veteran essentially contends that his duties as an heavy equipment operator while in service caused his bilateral hearing loss and tinnitus, and, therefore, he seeks service connection. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). For certain enumerated chronic diseases, such as sensorineural hearing loss and tinnitus, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)); Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is 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." 38 C.F.R. § 3.303(b) (2017); see 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b) (2017). For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling: 1) "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater"; or 2) "when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater"; or 3) "when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385 (2017). "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). Absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 158-60 (1993) (setting out the requirements for establishing service connection for hearing loss). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is 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) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. Bilateral Hearing Loss The Veteran contends that exposure to hazardous noise while in service, specifically while operating heavy construction equipment without hearing protection, caused his bilateral hearing loss and, therefore, he seeks service connection. The Veteran's Certificate of Release or Discharge from Active Duty shows that the Veteran's military occupational specialty (MOS) was construction machine operator, 626.10. With respect to the first Holton element, current disability, in March 2014, the Veteran was afforded a VA examination for hearing loss, during which he was diagnosed as having bilateral sensorineural hearing loss in all frequencies. The Veteran's puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 90 105+ 105+ 105+ 105+ LEFT 20 15 45 60 55 The Board finds that the Veteran has been diagnosed as having bilateral hearing loss for VA purposes during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that a current disability will be found upon evidence that a disability existed at any time during the pendency of the claim). Accordingly, the first Holton element is met. With respect to the second Holton element, in-service incurrence or aggravation of a disease or injury, in September 2017, the Veteran testified at the Travel Board hearing concerning his in-service hazardous noise exposure. He stated that in the military he was trained to operate heavy equipment and during service he worked in building missile sites, rifle ranges, and roads. The Veteran used photographs of himself from the claims file that he had presented in February 2013, showing him operating the equipment in service, to depict how close he was to the equipment during operation without use of hearing protection. The Veteran described and indicated on the photographs how close he was to the exhaust systems on the diesel engines during operation; the noise was severe. He testified that he remembered having a tingling sensation inside his ear, almost like an itch, while operating equipment in service. The Veteran's service treatment records contain evidence of his qualifications to operate a variety of pieces of heavy equipment and the classes that he took for training for those qualifications. It was noted in the report of the March 2014 VA examination that the Veteran also reported being exposed in-service to hazardous noise from small arms qualification. The Board finds that the Veteran's in-service hazardous noise exposure is consistent with his MOS and, accordingly, the second Holton element is met. With respect to the crucial third Holton element, medical evidence of a nexus between the service-connected disease or injury and the current disability, the Board notes that the question presented in this case, i.e., the relationship, if any, between the Veteran's current bilateral hearing loss and in-service hazardous noise exposure without hearing protection, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran's January 1960 enlistment examination report shows that his hearing was not tested using an audiogram; rather, it was tested using whispered words. His November 1962 separation examination report contains an audiogram result indicating that his hearing was normal. In a December 2013 statement in support of claim, the Veteran stated that a year or two after he was discharged from service, he began losing his hearing in the right ear. He stated that in the late 1960s he had his hearing tested by the state vocational rehabilitation department, during which he was told that he had profound hearing loss in his right ear and that he was a candidate for a hearing aid. He stated that because he was young and had hearing in his left ear, he declined the hearing aid. During his September 2017 testimony, the Veteran stated that his hearing started to drop about four or five years after he left service. He explained that it was in the 1960s that he had his hearing assessed by vocational rehabilitation at the hospital where he worked, and it was determined that he had hearing loss, especially in his right ear. The Veteran testified that he attempted to procure those records but was told that they no longer exist. He stated that he has lost all hearing in his right ear since then, and the hearing in his left ear has dropped dramatically. The Veteran testified that his hearing was fine when he was seventeen years old and joined the military. The Veteran testified that for all of his career after service he did office work in a hospital. In April 2014, the Veteran did a mass solicitation by e-mail of those who have known him well to provide buddy statements concerning their experiences of the Veteran's hearing loss. In June 2014, the Veteran presented numerous buddy statements, which in part included the following. J.F.F. stated that he has known the Veteran since the mid-1940s. They lost contact after high school and re-connected in the late 1960's. J.F.F. reported noticing that the Veteran's hearing had changed between before and after service and continued to deteriorate. J.A.S. wrote that he has known the Veteran for fifty-five years. He stated that the Veteran's hearing had been excellent in his younger years but in the mid-1960s, after the Veteran returned from service, he started to suffer from hearing loss. M.D.G. wrote that he worked with the Veteran from 1974 to 1989. He stated that the Veteran had hearing loss when they met and that it continued to get worse during the years they worked together. S.H.M. wrote that he started working with the Veteran in 1979, at which time the Veteran had hearing loss. He stated that during the twenty-one years that they worked together, the Veteran's hearing loss continued to get worse. The Veteran's former wife wrote that she has known the Veteran since 1967 and they were married from 1968 to 1978. She wrote that the Veteran was diagnosed as having hearing loss in 1970 based upon an audiological examination and that since that time, the Veteran's hearing has become worse. D.S. wrote that he has known the Veteran since 1965, and he has observed the Veteran's hearing loss become worse through the years. K.C.V. wrote that, starting in 1986, the Veteran became his supervisor at work and that he was made aware of the Veteran's hearing difficulties from the beginning. H.D. wrote that he and the Veteran had grown up together and that until graduation the Veteran had not displayed any signs of hearing loss. He wrote that the men re-connected in the mid- to late-1960s and it was rather apparent that the Veteran was experiencing hearing loss. I.R.N. wrote that he first met the Veteran in 1972 and that, at that time, he noticed that the Veteran had hearing loss. N.W.R. wrote that she met the Veteran in 1969 and, when they first met, she noticed that the Veteran had some difficulty hearing. The Veteran's cousin wrote that after the Veteran returned from service there was a steady decline in the Veteran's quality of hearing. Lay evidence is competent to note what one experiences, including decreased hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). It is similar to a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is not competent, however, to offer an opinion as to the etiology of one's disability since it requires specific medical training that neither the Veteran nor the other statement providers have been shown to possess. See 38 C.F.R. § 3.159(a)(1)-(2) (2017) (defining competent medical evidence and competent lay evidence); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "lay persons are not competent to opine on medical etiology or render medical opinions."). In the report of the March 2014 VA examination, the examiner noted that the Veteran's ontological history was unremarkable. It was noted that the Veteran had done some hunting without using ear protection when he was in his twenties. The examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. The rationale provided was that the Veteran's enlistment and separation audiologic examinations were normal. In April 2014, the Veteran sought a private medical opinion on his bilateral hearing loss from Dr. A.H.B. The audiogram results showed severe to profound hearing loss in the right ear and mild to severe hearing loss in the left ear. In a May 2014 letter, Dr. A.H.B. recited a detailed medical history pertaining to the Veteran's hearing as provided by the Veteran, noting that the hearing loss was gradual, and opined: "To the best of my medical knowledge and belief, it is my impression that he developed a nerve induced hearing loss secondary to noise exposure in the military." The Board has the responsibility of weighing the conflicting medical opinion contained in the March 2014 VA examination report and Dr. A.H.B.'s May 2014 letter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In weighing evidence, the Board may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Id.; see Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Based upon careful review of the foregoing, the Board finds that the evidence of record pertaining to the etiology of the Veteran's bilateral hearing loss is at least in relative equipoise. The Board notes that when making the opinion contained in the March 2014 VA examination report, the examiner had access to the photographs the Veteran presented in February 2013. However, the examiner did not have the benefit of the Veteran's September 2017 hearing testimony, especially in relationship to those photos. Furthermore, the examiner did not have the benefit of the Veteran's testimony that he experienced unreported tingling and itch in his ears while working on construction projects when he was in service. Additionally, the examiner did not address the Veteran's post-service history of early onset of unilateral hearing loss with continued progression of bilateral hearing loss. On the other hand, being board certified in general otolaryngology and otology as well as surgery, Dr. A.H.B.'s professional qualifications are more advanced than the VA audiologist who conducted the March 2014 VA examination. In his letter, Dr. A.H.B. included a detailed chronology of the Veteran progressive hearing loss, which supported his conclusion that the Veteran had sustained a nerve induced hearing loss secondary to noise exposure in the military. The Board finds the lay evidence credible and highly probative that from the time of service or shortly thereafter the Veteran exhibited continuous symptoms of hearing loss that were observable by others. See 38 C.F.R. §§ 3.307(b), 3.309(a) (2017). The Veteran provided consistent, detailed accounts of how his hearing deteriorated soon after service. The buddy statements show that the individuals who knew the Veteran before and after service noticed hearing loss in the 1960s. The statements from those individuals who met the Veteran thereafter stated that the Veteran had existing hearing loss at the time they met, which progressively got worse. Therefore, based on the evidence of record and resolving doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether the Veteran's audiological disability is causally related to service. As such, service connection for bilateral hearing loss is warranted in this case. 38 C.F.R. § 3.102 (2017); see also 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Tinnitus The Veteran has claimed for service connection for tinnitus. In March 2014, the Veteran was afforded a VA examination for hearing loss and tinnitus. At the time of the examination, the Veteran reported that he had experienced ringing in the ears, tinnitus, during the late 1960s and 1970s for a period of time, which occurred spontaneously without warning and eventually stopped never to return. During the examination, the Veteran denied having tinnitus currently. In September 2017, the Veteran testified at a Travel Board hearing that about four or five years after service he started having ringing in the years, which was about the same time he noticed having hearing loss. He stated that having lost hearing in his right ear, he does not hear the ringing anymore. With respect to the first Holton element, current disability, the Board finds that the competent evidence shows that the Veteran does not have a current diagnosis of tinnitus. A lay person is capable of observing tinnitus, Charles v. Principi, 16 Vet. App. 370, 374 (2002), and the Veteran has clearly stated that the tinnitus he once experienced in the 1960s and 1970s subsided, never to return. "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (interpreting McClain v. Nicholson, 21 Vet. App. 319 (2007)). Accordingly, the first Holton element is not met, and the claim fails. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Counsel Copy mailed to: The American Legion Department of Veterans Affairs