Citation Nr: 1806049	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  14-16 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

N.Yeh, Associate Counsel





INTRODUCTION

The Veteran served on active duty in the United States Army from May 1968 to May 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana.  


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss was not shown to have occurred in service, did not manifest for several years thereafter, and is not related to service.  

2.  The Veteran's tinnitus is not shown to have occurred in service, and is related to his bilateral hearing loss.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1112, 1131 (2012);  38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).  

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C. §§ 1110, 1131 (2012);  38 C.F.R. §§ 3.303, 3.310 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claim at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records have been obtained.   The Veteran indicated that he did not have any VA or private treatment records relating to his claims.  He was also offered an opportunity to testify at a Board hearing, but he declined. 

The Veteran was also provided with a VA examination in connection to his claims.  Neither the Veteran, nor his representative, has objected to the adequacy of the examination conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 
 
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

II.  Service Connection 

Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Service connection may be granted 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).  

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 which is aggravated by a service connected disability.  In such an instance, the 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); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Hearing loss, if sensorineural in nature, and tinnitus, if due to acoustic trauma, are considered a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "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.  With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303 (b).  

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.  The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability.  Hensley v. Brown, 5 Vet. App. 155 (1993).

Background 

The Veteran asserts that he served as a combat communications Sergeant in Vietnam and was a qualified expert on the M16 and a Sharpshooter.  His military personnel records reflect that he was a communications center specialist, and that he has received 4 Bronze Service Stars and a Republic of Vietnam Gallantry Cross with Palm Unit Citation for his participation in the Vietnam War.  He was also awarded a Sharpshooter Badge for his expertise.  It is his assertion that he developed bilateral hearing loss and tinnitus due to noise exposure during his time in the military.  

At the time of his separation in May 1971, the Veteran's physical examination documented normal audiometric readings and his Report of Medical History showed he specifically denied any ear complaints or hearing loss.  In an April 2012 statement, the Veteran indicated that he had no further treatment records as he did not visit a physician regarding his hearing loss or tinnitus.  

The Veteran was afforded a VA examination in August 2012.  The Veteran reported that he has had constant tinnitus for "many years in both ears."  His puretone thresholds in decibels in that examination were as follows: 





HERTZ


1000
2000
3000
4000
RIGHT
15
30
40
45
LEFT
20
30
40
45

Speech audiometry revealed speech recognition of 96 percent in the right ear and 88 percent in the left ear.  The examiner found that the Veteran exhibited sensorineural hearing loss in both ears.  

The examiner opined that the Veteran's bilateral hearing loss is less likely than not related to his service.  The examiner acknowledged that the Veteran was exposed to loud noise during service.  However, his separation examination showed normal hearing in both ears with no shift in thresholds, compared to his induction examination.  The examiner placed emphasis on the fact that the Veteran was employed as a timber log buyer for over 40 years and that he reported to being exposed to loud noise including chain saws and other equipment on the job, without hearing protection.  Thus, it was more likely that the Veteran's current hearing loss is due to his post service occupational noise exposure rather than the noise exposure during service.  In regard to the tinnitus, the examiner found that it is at least as likely as not related to the Veteran's bilateral hearing loss.  

Analysis

As noted above, the Veteran asserts that he served as a combat communications Sergeant in Vietnam.  The Board recognizes that in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.  38 U.S.C. § 1154 (b) (2012). Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id.  In Reeves v. Shinseki, 682 F.3d 988, 999-1000 (2012), the Federal Circuit noted that in a case in which the Board only recognized that the Veteran sustained acoustic trauma, the Federal Circuit maintained that simply because the Board accepted the fact that the Veteran suffered acoustic trauma in service did not mean that it was not required to apply the section 1154(b) presumption to the separate issue of whether he suffered hearing loss while on active duty. Notwithstanding, the Federal Circuit explained that "[e]ven when the section 1154(b) combat presumption applies, a Veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.'" Id. at n. 9.  Thus, the reduced evidentiary burden only applies to the question of service incurrence, and not to the remaining service-connection elements of current disability and nexus. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat Veteran's alleged disease or injury is service-connected."). 

While the record shows the Veteran had in-service noise exposure and he was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation, there is clear and convincing evidence that the Veteran did not have hearing loss or ringing in his ears during service.  His official service treatment records show no hearing impairment on audiograms, and his Report of Medical History shows that while the Veteran reported on a history of mumps and hay fever, he denied any relevant complaints associated with his ears and hearing loss.  Thus, the Veteran may not establish that there is a nexus between his military service and his current hearing loss and tinnitus by merely showing that "the [] disability he incurred in service was a chronic condition that persisted in the years following his active duty."  Reeves, 682 F.3d at 999-1000. Rather, the Veteran must establish that his in-service exposure to military noise led to a hearing and tinnitus disability following his service.  Here, the VA medical opinion evidence shows that there is no such relationship.

While the Veteran reported on his August 2011 claim for compensation benefits that "[he has] had hearing loss tinnitus since the war," as discussed above, this is contrary to evidence contemporaneous to the Veteran's service which the Board finds more probative due to its proximity to service.  Indeed, a contemporaneous statement as to a declarant's then-existing physical condition, such as his medical examination reports and history reports, (as opposed to his current statements of memory or belief to prove the fact remembered or believed) is recognized as possessing circumstantial guarantees of trustworthiness.  See Fed. R. Evid. 803(3), (4), and accompanying Notes; Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate).  Therefore, the examination report and history report are accepted as the credible and accurate account of the condition of the Veteran's hearing and ears during service and upon discharge.  Accordingly, the Board cannot find that there is credible evidence of a "notation" of the claimed conditions in service.  Consequently, service connection on the basis of continuity of symptomatology cannot be established.  Additionally, the Veteran's bilateral hearing loss was not shown until a VA examination in August 2012.  Thus, there is no medical evidence or persuasive credible lay evidence that hearing loss and tinnitus manifested to a compensable degree in the first year following the Veteran's separation from service.  Thus, service connection cannot be granted on a presumptive basis.  

The record does not contain evidence supporting a nexus between the Veteran's hearing loss and tinnitus to his service besides the Veteran's own statements.  The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss and ringing in the ears.  Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, in this case, the evidence demonstrates that there was a gap in time between the Veteran's exposure to loud noises in service and the initial manifestation of his sensorineural hearing loss for VA purposes, and there is extensive post-service noise exposure.  In such a circumstance, other potential causes of his sensorineural hearing loss and tinnitus must be considered. Significantly, determining the precise etiology of the Veteran's hearing loss and tinnitus is not a simple question, as there are conceivably multiple potential etiologies of the Veteran's sensorineural hearing loss and tinnitus. Ascertaining the etiology of hearing loss and tinnitus involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing.  In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss and tinnitus is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.").  Thus, the Board finds that the Veteran's opinion is not entitled to significant weight as compared to the unfavorable August 2012 VA opinion.

In summary, the Board concludes that the preponderance of the evidence is against granting service connection for bilateral hearing loss and tinnitus.  The benefit of the doubt rule is not for application. See 38 U.S.C. § 5107 (b).


ORDER

Entitlement to service connection for bilateral hearing loss is denied. 

Entitlement to service connection for tinnitus is denied.  



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs