Citation Nr: 1808410 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-37 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa 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 WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962 with an additional 5 months of prior active duty in 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. 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). FINDINGS OF FACT 1. A bilateral hearing loss disability did not manifest in-service, or within the first post-service year, and is not shown to be attributable to service. 2. The Veteran does not have tinnitus. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (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 duty to assist argument). Additionally, during the November 2017 Board hearing, the VLJ clarified the issues, and explained the concept of entitlement to service connection. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims. The actions of the VLJ supplement the Veterans Claims Assistance Act of 2000 and comply with 38 C.F.R. § 3.103. The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system (such as tinnitus), if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 CFR 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 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 lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). A. Bilateral Hearing Loss The Veteran contends he is entitled to service connection for a bilateral hearing loss disability. The Veteran has consistently reported that his hearing loss is a result of noise exposure in-service. Service personnel records show that he performed duties as a heavy weapons infantryman. In a December 2012 statement, the Veteran reported firing multiple sized mortars and anti-tank weapons. The Veteran is competent to describe his ongoing symptoms in-service and since, and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Pursuant to the Veteran's November 2017 videoconference Board hearing testimony regarding his role in service as a mortar crew chief, the Board concedes acoustic trauma. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The Veteran has a diagnosis of bilateral sensorineural hearing loss. See August 2013 and September 2015 VA examinations. The Veteran contends his in-service noise exposure resulted in his current hearing loss. Because the Veteran has a current hearing loss disability and in-service noise exposure has been conceded, the main issue before the Board is whether the Veteran's in-service noise exposure is related to his current bilateral hearing loss disability. A January 1958 Army Reserve examination and September 1958 Army examination show whispered voice testing of 15/15 which equates to normal hearing. However, as whispered voice testing is not currently considered to be a reliable measurement of hearing loss, such cannot be considered as reliable evidence that hearing loss did or did not occur. The earliest authorized audiological evaluation in the record occurred in September 1958. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 - 35 LEFT 15 10 15 - 35 Speech audiometry testing to determine speech recognition was not performed. During a November 1961 examination, the Veteran reported that he had never experienced any issues regarding his ears. The authorized audiological evaluation performed at that time reflected pure tone thresholds, in decibels, as shown below: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 - 35 LEFT 15 10 15 - 35 Speech audiometry testing to determine speech recognition was not performed. At his June 1962 separation, on the report of medical history, the Veteran denied ear, nose, or throat trouble. The authorized audiological evaluation performed at that time reflected pure tone thresholds, in decibels, as shown below: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 - 10 LEFT 15 10 10 - 25 Speech audiometry testing to determine speech recognition was not performed. The Board notes the Veteran's September 1958, November 1961, and June 1962 audiological examinations are presumed to be reported in standards set forth by the American Standards Association (ASA). Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO (International Organization for Standardization) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. The ASA results are the figures on the left of each column and are not in parentheses. Converted audiological evaluation in September 1958: HERTZ 500 1000 2000 3000 4000 RIGHT 25 (10) 20 (10) 20 (10) - 40 (35) LEFT 30 (15) 20 (10) 25 (15) - 40 (35) Converted audiological evaluation in November 1961: HERTZ 500 1000 2000 3000 4000 RIGHT 25 (10) 20 (10) 20 (10) - 40 (35) LEFT 30 (15) 20 (10) 25 (15) - 40 (35) Converted audiological evaluation in June 1962: HERTZ 500 1000 2000 3000 4000 RIGHT 20 (5) 15 (5) 20 (10) - 15 (10) LEFT 30 (15) 20 (10) 20 (10) - 30 (25) Following the conversion, STR's demonstrate that the Veteran experienced mild high frequency loss bilaterally in September 1958 and November 1961. The Veteran's June 1962 audiological evaluation reflects hearing within normal limits bilaterally. May 2005 private treatment records reflect that the Veteran began using hearing aids in 1982. The private physician reported that the Veteran had moderate to severe hearing loss gradually down sloping with poor discrimination in his right ear. May 2009 private treatment records reflect that his hearing had slightly decreased. The Veteran was afforded a VA examination in August 2013. The Veteran reported that he began noticing that he was having difficulty hearing in the mid-1980's. He reported occupational noise exposure for 18 years working as a machine operator and that hearing protection was not required in the beginning of his employment. Following an audiological examination, the Veteran was diagnosed with sensorineural hearing loss. The examiner was unable to review the Veteran's STR's as she did not have access to the Veteran's claims file. Without a review of the STR's, the examiner determined that the Veteran's bilateral hearing loss was less likely than not related to his service because the gradual decline in hearing, the history of occupational noise exposure and the flatter configuration of hearing loss indicated physiological causes other than noise exposure. The Veteran was afforded an additional VA examination in September 2015. He denied post-service occupational noise exposure. The examiner reviewed the Veteran's claims file, to include his STR's. It appears that the examiner used converted audiological evaluations when assessing the Veteran's in-service hearing examinations because she reported that the Veteran had mild high frequency hearing loss bilaterally during his enlistment examination. The examiner concluded that the Veteran's current bilateral hearing loss was less likely than not related to his in-service noise exposure. She explained that the audiogram is the objective standard for noise injury. A significant threshold shift on the audiogram may indicate a noise injury. With no significant threshold shift, there is no noise injury. The Institute of Medicine (2006) stated there was insufficient scientific basis given the current understanding of auditory physiology to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Given the absence of significant threshold shifts during military service, she determined that it was less likely than not that the Veteran's current hearing loss was caused by or a result of noise exposure during the Veteran's military service. During the Veteran's November 2017 videoconference Board hearing, the Veteran testified that he was exposed to significant acoustic trauma in service, and did not wear hearing protection. He testified that his hearing loss began in service, but that he did not notice that he suffered hearing loss until he had spent 17 years at his post-service employment and a supervisor pointed out that he was having trouble hearing people during a meeting. The Board finds the September 2015 VA examination and opinions are entitled to probative weight, as the examiner's opinions were based on a through medical examination and review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the examination and opinions are of high probative value. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that entitlement to service connection for bilateral hearing loss is warranted. The Board notes that the Veteran is competent to testify to his observations and symptoms of hearing loss and his statements are credible. However, the Veteran's testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran's statement as to whether his hearing loss is related to in-service noise exposure is outweighed by the other evidence of record. The Board finds that the medical evidence is more probative and more credible than the lay opinions of record. While the Veteran has reported that his current hearing loss is a result of noise exposure in service, the Board finds the September 2015 VA examination and opinions which were based on the examiner's medical expertise and well-reasoned rationale are more probative. The September 2015 VA opinion was based on the examiner's medical expertise and provided a well-reasoned rationale and as a result is entitled to significant probative weight. The VA examiner found that it was less likely than not that the Veteran's bilateral hearing loss was due to in-service noise exposure. The examiner noted a review of the Veteran's STRs and audiograms, indicating that they were appropriately converted to the correct standards, and found no significant negative shift from entrance to exit. The examiner noted the Veteran's reports of in-service noise exposure, but the examiner noted that a review of the medical literature does not support a finding of delayed onset hearing loss. The Board accepts that the Veteran was exposed to significant noise and that he experienced a decrease in acuity around that time. However, on the discharge examination in June 1962, the Veteran's clinical examination was normal and no hearing loss was noted. This normal finding is inconsistent with ongoing manifestations of pathology. Based on the probative evidence of record the Board finds that the Veteran's bilateral hearing loss did not manifest within the one year period after service and service connection is not warranted on a presumptive basis. In addition, in weighing the evidence, the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. Although the Veteran has established a current disability, the preponderance of the evidence weights against finding that the Veteran's bilateral hearing loss is related to his active service and as such service connection is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. B. Tinnitus The Veteran appealed the September 2013 rating decision denying entitlement to service connection for tinnitus. STR's show that the Veteran did not complain of tinnitus of manifestations of tinnitus while in service. STR's reflect that the Veteran self-reported that he had not experienced ringing in his ears on September 1958, November 1961, and June 1962 examinations. May 2005 private treatment records report that the Veteran did not experience tinnitus. November 2006 private treatment records reflect a new onset of pulsatile tinnitus. May 2009 private treatment records note a long history with tinnitus. The Veteran filed a claim for entitlement to service connection for tinnitus in December 2012. The Veteran was afforded a VA examination in August 2013. The Veteran denied recurrent tinnitus and it was therefore not diagnosed as a current disability. On a November 2013 statement, the Veteran reported that his tinnitus began in 1958 after using weapons without ear protection. On his October 2014 VA Form-9, the Veteran stated that he continued to experience ringing in his ear. In September 2015, the Veteran submitted a statement in which he reported that he denied experiencing tinnitus during the August 2013 VA examination, because he did not know the meaning of the word tinnitus. He requested a new examination in order to clarify. The Veteran was afforded an additional examination in September 2015. The Veteran again denied experiencing tinnitus, and therefore no diagnosis was provided. In November 2015, the Veteran again submitted a statement asserting that he experienced ringing in his ears continuously since his time in the service. He stated that the September 2015 VA examiner did not ask him about tinnitus. As noted above, the Veteran attended a videoconference Board hearing in November 2017. The definition of tinnitus was explained to the Veteran. He explicitly stated that he did not have ringing in his ears, but instead suffered from hearing loss. He stated that hearing loss was his only issue. Tinnitus was again clarified for the Veteran and he testified that he did not experience scratching noises, ringing or anything else, but only had hearing loss. December 2017 private treatment records reflect that the Veteran did not suffer from tinnitus. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). As stated above, the Veteran initially submitted statements reporting tinnitus. The Board notes a lay person is competent to provide testimony regarding factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran is competent to report symptoms of tinnitus. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However in this instance, when the issue was clarified at the November 2017 videoconference Board hearing, the Veteran testified that he did not experience any manifestations of tinnitus. The record reflects that the Veteran has not been diagnosed with tinnitus since May 2009. The Board finds there is no credible persuasive evidence indicating that the Veteran suffers from tinnitus. The Board finds the August 2013 and September 2015 VA examinations, as well as the Veteran's November 2017 testimony to be the most probative evidence of record. Though the Veteran filed a claim for tinnitus, he later denied tinnitus or any manifestations of tinnitus, after having the condition thoroughly explained. Consequently, there is no credible persuasive evidence of record showing that the Veteran has tinnitus. As such, the Board finds that a preponderance of the evidence is against the claim for service connection for tinnitus. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs