Citation Nr: 1805608 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-14 783 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the VA RO. This appeal was previously before the Board in July 2016. As is discussed in greater detail below, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran does not have a chronic right ear hearing loss disability. 2. Neither the Veteran's left ear hearing loss disability nor his tinnitus is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In the instant case, the Veteran was provided with all appropriate notification in November 2011, and he has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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). Thus, adjudication of the Veteran's claims at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to this claim for benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and post-service medical records have been obtained, to the extent available. The Veteran received an examination addressing his bilateral hearing loss disability and tinnitus in July 2013. In July 2016, upon review of the July 2013 examination report, the Board remanded the Veteran's claim in order to obtain an additional opinion addressing the etiology of the Veteran's bilateral hearing loss disability. An additional opinion was rendered in August 2016, which the Board finds adequately addresses the likely etiology of the Veteran's hearing loss disability. Thus, the Board concludes that the medical evidence of record, particularly the August 2016 supplemental opinion, is adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran declined the opportunity to participate in a hearing before the Board. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection In order to establish service connection, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Hearing loss and tinnitus are chronic diseases, and service connection may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service incurrence will be presumed for hearing loss and tinnitus if manifested to a compensable degree within the year after active service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Turning to the facts in this case, in an August 1966 Report of Medical History completed at the Veteran's entrance into service, the Veteran denied ever having experienced ear trouble or hearing loss. The August 1966 entrance examination showed the following puretone thresholds, recorded in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 0 N/A 0 RIGHT 0 0 0 N/A 0 An August 1971 audiogram showed the following puretone thresholds, recorded in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 25 15 10 10 5 RIGHT 25 5 5 15 5 In a May 1973 Report of Medical History, the Veteran denied ever having experienced ear trouble or hearing loss. The May 1973 separation examination showed the following puretone thresholds, recorded in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 25 15 5 10 0 RIGHT 10 5 5 5 0 Following service, the Veteran filed his claim of entitlement to service connection in July 2011, stating that his disabilities related to in-service exposure to noise from jet engines. In an April 2013 audiological consultation, the Veteran reported experiencing difficulty understanding speech in most noisy situations. The Veteran reported experiencing tinnitus in both ears. An April 2013 audiogram showed the following puretone thresholds, recorded in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 40 25 30 30 55 RIGHT 25 25 15 20 20 The Veteran underwent a VA examination in July 2013, at which time the Veteran reported that he first began experiencing difficulty hearing 9 to 10 months before the examination. After service, the Veteran reported that he worked as a truck driver for 14 years, then worked as a trucking dispatcher, manager, and in sales and delivery. Audiological testing showed the following puretone thresholds, recorded in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 40 30 30 35 55 RIGHT 20 20 15 20 20 Maryland CNC speech testing was 96 percent for both ears. The examiner found it to be less likely than not that the Veteran's hearing loss was related to service. As a rationale for this opinion, the examiner noted that the Veteran had normal hearing both at the time of his 1966 enlistment into service and his 1973 separation from service, and the Veteran denied having experienced hearing loss at his separation from service. The examiner acknowledged that an August 1971 hearing test showed a threshold shift at 500 and 1000 Hertz in the left ear. The examiner noted a shift in hearing thresholds in only the low frequencies was atypical for hearing loss due to noise exposure. The examiner noted that a middle ear pathology could not be ruled out because bone conduction data was not recorded at the time of the 1971 testing. The examiner noted the Veteran's current complaint of tinnitus, but noted that the Veteran did not complain of symptoms of tinnitus while in service. The examiner noted that the Veteran's tinnitus was likely a symptom of his hearing loss and middle ear pathology, which, as noted above, the examiner found was less than likely related to the Veteran's service. In August 2016, an examiner provided an additional opinion regarding the shift in the Veteran's hearing thresholds between his 1966 entrance into service and his 1973 separation from service. The examiner noted that the Veteran's hearing, which showed the greatest shift in the left ear at 500 Hertz, was essentially normal at both entrance and separation. Furthermore, the examiner indicated that the threshold shift was not indicative of a noise-induced sensorineural hearing loss disability because hearing loss due to noise exposure shows changes in thresholds in the higher frequencies. The August 2016 examiner further found that the findings from the April 2013 and July 2013 audiograms were consistent and did not vary in a significant way. The examiner again found that the Veteran did not have a right ear hearing loss disability for VA compensation and pension purposes. The Veteran's left ear hearing loss disability was both conductive and sensorineural in origin. The examiner noted that the conductive component was atypical for hearing loss due to noise and was indicative of other pathology. Thus, the examiner concluded that the Veteran's left ear hearing loss was less likely than not due to noise exposure during active service. Turning to an evaluation of this evidence, the evidence does not indicate that the Veteran has experienced a right ear hearing loss disability at any time since filing his claim in July 2011. To the extent that the Veteran indeed believes that he experiences symptoms of difficulty hearing from his right ear, the Veteran is competent to testify as to readily-observable symptoms such as diminished hearing. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent to report that any symptoms that he currently experiences rise to the level of a "disability" for VA purposes, which requires that hearing loss reaches a certain threshold before it is considered disabling. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of a right ear hearing loss disability. In sum, the Board concludes that the criteria for service connection for a right ear hearing loss disability have not been met, and the claim is denied on this basis. With that said, the evidence shows that the Veteran currently has a left ear hearing loss disability and tinnitus. The Veteran has credibly contended that he was exposed to loud noises in service while serving on the flight line as a jet engine mechanic. With both a current disability and an in-service incident, the remaining question is whether the evidence supports a finding of a connection between the Veteran's current left ear hearing loss disability and his tinnitus on the one hand, and his in-service experiences on the other hand. To that end, the Board places great probative weight in the opinion of the July 2013 and August 2016 examiners that the Veteran's left ear hearing loss and tinnitus were not likely related to his service because such opinions were offered by medical professionals and considered the evidence of record. To the extent that the Veteran believes that his left ear hearing loss disability and tinnitus are related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing diminished hearing acuity. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a left ear hearing loss disability and tinnitus, the issue of causation of such a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's left ear hearing loss disability and tinnitus are related to his service, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, as such evidence was provided by medical professionals and concerned the functioning of the Veteran's nervous system, something that is not readily perceivable by the use of a person's senses. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his left ear hearing loss disability and tinnitus, and it finds that he has not done so. The record contains no complaints relating to the Veteran's hearing until the Veteran filed his 2011 claim approximately 38 years after he separated from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Moreover, during the Veteran's July 2013 examination, he reported experiencing symptoms of hearing loss for the preceding 10 months. The Veteran denied ever having experienced ear trouble or hearing loss at the time of his separation examination, and his hearing was normal at the time of his separation from service, thereby providing contemporaneous evidence against a finding that he had a hearing loss disability at that time, or continuously since service. Thus, the Board finds that the weight of the evidence does not support a finding of continuous symptoms since active duty. The medical nexus element thus cannot be met via a continuity of symptomatology. Furthermore, the Board finds that a left ear hearing loss disability and tinnitus were not shown within one year following separation from service, or for many years after service. Therefore, presumptive service connection is not warranted. The Board concludes that the weight of the evidence is against granting service connection for a left ear hearing loss disability and tinnitus, and the claims are denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs