Citation Nr: 1805003	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-25 264	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel
INTRODUCTION

The Veteran served on active duty from July 1975 to November 1975 and from May 1977 to February 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). 

The May 2013 rating decision only considered the issue of entitlement to service connection for tinnitus. However, the Board finds that the Veteran's initial claim of service connection for tinnitus includes a claim of entitlement to service connection for a bilateral hearing loss disability as tinnitus is a symptom of the Veteran's bilateral hearing loss. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

In May 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record.

In July 2016, the Board remanded the claim for further development. Specifically, the Board remanded the claim to afford the Veteran another audiology examination related to his bilateral hearing loss and tinnitus.

In August 2017, the Board requested expert medical opinion from the Veterans Health Administration (VHA). The VHA opinion, dated October 2017, has been provided to the Veteran and his representative.


FINDINGS OF FACT

1. The Veteran did not exhibit bilateral hearing loss in service or within one year after discharge from service, and bilateral hearing loss is not otherwise shown to be associated with his active service.

2. The Veteran did not exhibit tinnitus in service or within one year from service, and tinnitus is not otherwise shown to be associated with his active service.


CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

2. The criteria for the establishment of service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Advise and Assist

The Board notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). There has also been no argument raised as the adequacy of the VHA opinion. Robinson v. Mansfield, 21 Vet. App. 545 (2008).


Relevant Laws and Regulations

Service Connection

Under applicable VA law, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In general, the relevant law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258 (2015).

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). However, decreased hearing acuity does not equate as being a "disability" for VA purposes. McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. 

The absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). Hensley also provides that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability.

Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows:

Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope.

67 Fed. Reg. 59033-01 (Sept. 19, 2002).

Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Entitlement to service connection for bilateral hearing loss.

The Veteran contends that he has bilateral hearing loss due to noise exposure during active duty. 

At his separation physical examination in January 1979, the Veteran indicated that he never had hearing loss. The examiner noted that the Veteran's PULHES (Physical capacity/stamina, Upper extremities, Lower extremities, Hearing/ear, Eyes, Stability) were all 1s, indicating good health and qualification for separation from service. Specifically, the examiner noted hearing as 1 which indicates no hearing problems. 

In addition, the separation physical contains results of an audiology examination. The findings are:


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
5
5
N/A
15
0
N/A
LEFT
5
5
N/A
15
0
N/A

In November 2012, the Veteran underwent an audiology examination regarding his claim. The November 2012 VA examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
35
40
55
75
51.25
80
LEFT
60
70
80
95
76.25
56

The examiner interpreted the separation physical audiometric examination as normal, or within normal limits (WNL), bilaterally. As a result of this audiogram, the examiner opined that the Veteran's current hearing loss was not related to military noise exposure due to the lack of in-service complaints and no evidence of a significant threshold shift in hearing. See VA Examination, dated November 28, 2012.

A June 2016 private examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
45
40
50
50
46.25
80
LEFT
45
45
55
55
50
100

The physician diagnosed the Veteran with bilateral neurosensory hearing loss and tinnitus.

In the June 2016 private medical opinion, the physician stated the "Veteran feels that this exposure (to weapons fire) has initiated the hearing loss and tinnitus that he experiences today." The private physician stated that "it is at least as likely as not that the Veteran's service history of exposure to hazardous noise while in the service may have initiated a hearing loss (because loud noise from [weapon fire and generators] are known to result in the development of hearing loss and/or tinnitus)." See Private Medical Opinion, dated June 14, 2016.

In September 2016, the Veteran underwent an audiology examination regarding his claim. The September 2016 VA examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
50
50
55
65
55
98
LEFT
55
55
60
60
57.5
98

As a result of this audiogram, the examiner opined that the Veteran's current hearing loss was not related to military noise exposure. The examiner opined that "the veteran did not present with any complaints of hearing loss or tinnitus until 2012, 33 years after his military service. His audiometric pattern today is not consistent with a typical noise induced hearing loss, which is usually a sloping pattern. His loss pattern is considered a FLAT sensorineural hearing loss." The examiner further opined that the Veteran's current hearing loss was less likely than not the result of in-service noise exposure. See VA Examination, dated September 9, 2016.

In August 2017, the Board referred this claim for an independent expert medical opinion from an audiologist. The audiologist reviewed the Veteran's entire claims file, include service treatment records, post-service treatment records, and the previous findings discussed above. The expert opined that "hearing loss from noise exposure shows a downward sloping audiogram with the nadir at 4KHz with 
some recovery at 6KHz. The Veteran's audiogram shows a flat pattern that is inconsistent with noise induced hearing loss. Also, there was a thirty-year delay in the onset of his tinnitus. Therefore, I conclude that it is less than 50% likely that (the Veteran's) hearing loss was caused by noise exposure during his active duty military service." See VHA Opinion, dated October 6, 2017.

The Board notes that there is medical evidence of record both in support of, and against, a finding that the Veteran's hearing loss is related to his active duty service. The Board must analyze the credibility and probative value of evidence, account for the persuasiveness of evidence, and provide reasons for rejecting material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

The probative value of medical opinion evidence is based on the medical expert's knowledge and skill in analyzing the data and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

In this case, the Board places great probative weight on the combined opinions of the November 2012 and September 2016 examiners and the VHA expert. The examiners found that the Veteran's audiometric data in service was within normal limits bilaterally and that such results made it less likely than not that bilateral hearing loss had its onset in service or was related to service. The VHA examiner agreed with this reasoning, and further explained that the Veteran's hearing loss pattern was not the type of pattern which would indicate in-service noise-induced hearing loss which progressed from normal hearing after exposure, as indicated in the Veteran's separation physical examination, to a clinically significant loss years later.

On the other hand, the private medical opinion did not explain the rationale supporting the opinions that the Veteran's current hearing loss is related to military noise exposure. The examiner was aware of the military history of noise exposure, which is accepted by the Board. However, the examiner was not shown to have reviewed the audiometric data in service, and did not explain why the Veteran either manifested hearing loss in service or manifests delayed onset hearing loss. The combined opinions by the VA and VHA examiners explain why the audiometric data are importance considerations in arriving at an opinion. Based on these deficiencies, the Board finds this private opinion holds significantly lower probative value than the combined opinions of the VA and VHA examiners.

The only other evidence capable of substantiating the claim consists of the Veteran's own perception to decreased hearing acuity and his opinion as to a causal relationship between hearing loss and in-service noise exposure. With respect to causation, the Veteran is not shown to possess the requisite medical training and expertise to speak to the causal relationship between hearing loss and in-service noise exposure. The Board places greater probative weight on the objective audiometric testing upon service separation which showed normal hearing, even under Hensley standards, and the VA and VHA opinions interpreting the entirety of the record.  

With respect to establishing service connection based upon continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis as being manifest to a compensable degree within one year of service discharge, the Veteran's perception of decreased hearing acuity well after service does not adequately support a finding of actual sensorineural hearing loss disability being first manifested in service or within one year of service discharge as the existence of a "disability" is specifically defined at 38 C.F.R. § 3.385 in terms of specific levels of tone threshold perceptions and speech recognition which is beyond lay competence to measure.  McKinney, 28 Vet. App. at 24-5. In short, the Veteran's recollections of decreased hearing acuity many years after leaving service is not capable of showing it rose to the level of a "disability" for VA purposes in service, or to a ratable level of disability within one year of service discharge.

For all of the foregoing reasons, the Board finds that the claim for service connection for bilateral hearing loss must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Entitlement to service connection for tinnitus.

The Veteran contends that he has tinnitus due to noise exposure during active duty. In his August 2013 Statement in Support of Claim, the Veteran stated "we went to firing ranges all the time. Now my left ear is ringing and can't hardly hear until after the ringing stops. My right ear isn't that bad yet, but it might get there...I don't know when this all started but I know the military had to have something to do with it." See Statement in Support of Claim, dated August 26, 2013.

As discussed above, the Veteran's service treatment records do not contain any evidence of hearing problems, to include tinnitus. In fact, the Veteran provided a negative response to whether he had hearing problems. He has also provided inconsistent recollections as to the onset of his tinnitus. 

At a VA examination in November 2012, the Veteran stated that the tinnitus "first started about 4 years ago, but I didn't know what it was until my doctor told me what it was." The examiner determined that the Veteran had bilateral, intermittent tinnitus associated with hearing loss. The examiner opined that:

It is less likely than not that the veteran's tinnitus is related to noise exposure during military service due to veteran report of onset of symptoms of tinnitus 4 years ago with no isolated precipitating event which is well more than a year after separation from military service and the absence of any indication of veteran complaint of tinnitus during military service per medical records reviewed. A diagnosis of noise-induced tinnitus requires a diagnosis of noise-induced hearing loss or an association between tinnitus onset and some noise-related event (Tinnitus Handbook, Tyler, 2000). 

In his May 2016 Board hearing, the Veteran testified that his tinnitus had been occurring for "about seven or eight years." See Hearing Transcript, dated May 26, 2016.

As stated above, in the June 2016 private medical opinion, the physician stated the "Veteran feels that this exposure (to weapons fire) has initiated the hearing loss and tinnitus that he experiences today." However, the private physician did not provide any finding on the actual onset of symptomology. Rather, the examiner only focused on the current diagnosis and determined that "it is at least as likely as not that the Veteran's service history of exposure to hazardous noise while in the service may have initiated a hearing loss (because loud noise from [weapon fire and generators] are known to result in the development of hearing loss and/or tinnitus," without discussion of the delayed reports of symptoms. See Private Medical Opinion, dated June 14, 2016.

In the September 2016 VA Examination, the examiner noted that the "Veteran does not know the exact date but feels tinnitus started in the 1990s, which is a significant time past his military noise exposure." The examiner also noted that "the veteran did not present with any complaints of hearing loss or tinnitus until 2012, 33 years after his military service." The examiner opined that "the veteran's claimed bilateral hearing loss and tinnitus is 'not' at least as likely as not incurred in or caused by in service noise exposure." See VA Examination, dated September 9, 2016.

As noted above, tinnitus is a unique disability largely capable of substantiation by lay claimant description of symptoms. See 67 Fed. Reg. 59033-01 (Sept. 19, 2002); Charles, 16 Vet. App. 370 (2002). Thus, to a certain extent, the claim rises and falls on the most credible recollection of the onset of tinnitus - in service or after service. The Board observes that the Veteran has demonstrated recollection difficulties with the claim on appeal. However, the fact that the Veteran has recalled the actual onset of tinnitus differently several occasions tends to demonstrate either a failure of memory and weakens and impairs the value of his testimony. See generally State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) ("Generally, after a proper foundation has been laid, a witness may be impeached by evidence of his declarations or statements which are either inconsistent or contradictory to his testimony at trial). See also Seng v. Holder, 584 F.3d 13, 19 (1st Cir.2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory).

Here, the Veteran is attempting to recollect events which occurred many decades ago. In the opinion of the Board, the Veteran's most accurate recollection is his first recollection to the VA examiner in November 2012 as it is his first statement in the matter made in the context of receiving an appropriate diagnosis and opinion. Notably, in this examination, the Veteran stated that the onset of symptoms began "about four years ago." In his 2016 Board testimony, the Veteran testified to a similar timeframe for the onset of symptoms, approximately 2008 or 2009.  The Board is persuaded from the entirety of the record that the Veteran's symptoms began in approximately 2008 or 2009, 30 years after service.

Thus, the Board finds that the credible lay and medical evidence does not show that tinnitus first manifested after service or within one year from service. Thus, the claim cannot be granted based upon continuity under 38 C.F.R. § 3.303(b) or the presumptive provisions of 38 C.F.R. § 3.309(a).

The Board recognizes the Veteran's statements made in support of his claim. He Veteran is competent to report having sustained acoustic trauma during active duty. Since his contentions are consistent with the circumstances of his service, such assertions are deemed to be credible. The Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing noise exposure during service and having tinnitus symptoms after service). However, as held above, the Veteran has not presented credible evidence that he manifested tinnitus in service or within one year from service. As a lay person, he is not competent to provide opinion as to the etiology of tinnitus as this requires medical nexus evidence which falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, supra. As a result, his assertions cannot constitute competent medical evidence in support of his claim.

For all of the foregoing reasons, the Board finds that the claim for service connection for tinnitus must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs