Citation Nr: 1809255 Decision Date: 02/16/18 Archive Date: 02/27/18 DOCKET NO. 12-28 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to July 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) in Los Angeles, California. The RO characterized the appeal as stemming from a January 2008 rating decision that declined to reopen the Veteran's hearing loss and tinnitus claims. On review of the record however, the Board notes a prior rating decision on the same issues. In this regard, an April 2005 rating decision denied the Veteran's original service connection claims for bilateral hearing loss and tinnitus. The April 2005 rating decision did not become final however because the Veteran submitted new and material evidence in March 2006, within one year of that rating decision. See 38 C.F.R. § 3.156 (b) (2017). The Veteran requested a Travel Board Hearing in connection with her claims on appeal. A hearing was scheduled for March 8, 2017. Nevertheless, the Veteran failed to report to her scheduled hearing without showing a good cause. Neither the Veteran nor her representative requested that the hearing be rescheduled. The Veteran's hearing request is therefore considered to have been withdrawn. See 38 C.F.R. § 20.704(d) (2017). FINDINGS OF FACT 1. Hearing loss was not "noted" on the service enlistment examination. 2. The Veteran was exposed to acoustic trauma while in service. 3. The Veteran is currently diagnosed with a bilateral hearing loss disability for VA purposes, and tinnitus. 4. The Veteran did not exhibit chronic symptoms of bilateral hearing loss disability or tinnitus during service, or continuous symptoms thereafter. 5. Bilateral hearing loss disability and tinnitus did not manifest to a compensable degree within one year of service separation. 6. The Veteran's current bilateral hearing loss disability and tinnitus manifested many years after service separation and are not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1111, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 2. The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1111, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Applicable Laws and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304 (b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). The Veteran is currently diagnosed with bilateral hearing loss (sensorineural hearing loss) and tinnitus (an organic disease of the nervous system), both are considered a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases 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 as such in service, 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs, and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Analysis The Veteran asserts that she has currently diagnosed bilateral hearing loss and tinnitus as a result of her active duty service. Upon entrance into service, the Veteran underwent a November 1976 audiometric test, and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 - 10 LEFT 10 5 25 - 20 The Veteran's service treatment records (STRs) show no complaints, treatment, or diagnoses of hearing loss or tinnitus. The Veteran's May 1980 separation examination report show pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 - 10 LEFT 15 15 25 - 25 The Veteran's DD-214 establishes that she was a Legal Clerk and a Journalist. Post-service, VA treatment notes from Danville outpatient audiology consultation dated in February 1989 reflect the Veteran's report of constant tinnitus that started two years earlier in late-December 1988. Audiology results obtained during that time revealed normal hearing in all frequencies, bilaterally. Additional treatment notes dated in July 1989 again revealed normal sensitivity in all test frequencies, and word recognition was excellent in the right ear, and very good in the left ear. The next available treatment record is not until September 2003, where the Veteran was seen at the Loma Linda HSC, at which time a diagnosis of bilateral hearing loss was confirmed. She was later fitted with hearing aids in 2006 and 2009. Subsequent audiology examinations from the Loma Linda VAMC show a progression of bilateral hearing loss. In July 2009 correspondence, the Veteran stated that a supply clerk was upset with her and attacked her, hitting her head against the wall several times. Lastly, she indicated that she was exposed to noise in many occasions as a photojournalist, postal clerk, bus driver, and more. In March 2012, the Veteran underwent a VA audiology examination, where she reported that he hearing loss was due to "the Maintenance Battalion in Hanau, Germany, falling and injuring on survival training in Darmstadt, FRG, head injury in post FRG, loud noise in field training, driving a bus, and being in large truck on field exercise." She further reported that her tinnitus began in 1982. After a thorough examination and review of the record, including statements made by the Veteran, the March 2012 VA audiologist opined that it was less likely than not that the Veteran's hearing loss and tinnitus were due to, or a result of, military noise exposure. In support of the medical opinion, the audiologist confirmed that the Veteran had normal hearing during both her March 1976 and May 1980 in-service audiology examinations and comparison of the examinations do not show significant shift in hearing thresholds for both ears. The examiner further cited to medical literature, which showed that hearing loss was similar between Veteran's and non-Veteran's, specifically since her separation examination showed no hearing loss for VA purposes and was not manifested until at least 8 years after her active military service. The examiner also opined that the Veteran's tinnitus was more likely than not a symptom associated with the Veteran's hearing loss and her current subjective tinnitus was not cause by noise exposure during service. On her October 2012 VA Form 9, the Veteran stated that just because her military occupational specialty was "in an office," it was not an indication she was not exposed to noise as she was "hardly ever in [her] office." In a correspondence attached to her VA 9 Form, she noted that during Survival Training she slipped on the snow and ice, hit her head, and was temporarily knocked out, but since they only had field medics, she did not leave the training. She further stated that in another occasion she again slipped on ice and hit her head, and during an argument with another service-member, she was grabbed and her head was slammed on the wall a few times, but because the altercation took place in the barracks, they were ordered back to their own barracks, and nowhere else. She concluded that "it was after that the ringing was more constant." For the reasons discussed below, the Board finds that the criteria to establish service connection for bilateral hearing loss and tinnitus are not met. Initially, the Board notes that the Veteran is currently diagnosed with a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385, and tinnitus. See e.g., March 2012 VA examination report. The Board next finds that bilateral hearing loss and tinnitus were not "noted" upon service entrance. There is no entirely evidence of tinnitus or right ear hearing loss at service entrance. There is however an indication of some hearing impairment under Hensley in the left ear shown on entrance audiometric testing, as the threshold level at 2000 Hertz was 25dB. Hensley, 5 Vet. App. at 157. That notwithstanding, the Court in Hensley specifically noted that some degree of hearing loss is not considered a "disability" unless the auditory thresholds meet the criteria as set forth under 38 C.F.R. § 3.385. Therefore, even considering the sole notation of a 25 dB threshold in the left ear at the 2000 Hertz range during the November 1976 service entrance audiometric examination, the evidence is at least in equipoise as to whether the Veteran's left ear hearing was within normal limits at service entrance. The Board therefore resolves any doubt in the Veteran's favor, and concludes that because the Veteran's left ear hearing did not rise to the level of a "disability" for VA purposes at service entrance, her left ear hearing is also considered to have been "sound" at entrance. Accordingly, the Board finds that left ear hearing loss did not pre-exist her military service. The Veteran is deemed sound upon service entrance with respect to both issues on appeal. Although the Veteran's MOSs are not generally considered ones that result in exposure to hazardous noise, the Veteran asserts that in her service duties as a clerk and journalist, she was attached to an infantry unit, was often in the field working as a photojournalist, and thus exposed to loud noises. Her DD-214 confirms her MOSs and her attachment to an infantry unit. As such, resolving any reasonable doubt in her favor, the Board concedes in-service noise exposure. The Board next finds that tinnitus and hearing loss symptoms, to include any chronic symptoms, did not have their onset during service. STRs are absent of any complaint for tinnitus, and as discussed further, the Veteran's reports of onset are inconsistent. Her STRs also are absent any complaints or diagnoses of hearing loss, and the March 2012 VA examiner indicated that comparison of the entrance and exit audiology examinations do not reveal a significant threshold shift. Thus, while the Veteran's May 1980 separation audiogram showed some hearing impairment in the left ear under Hensley, the results do not meet the criteria for a hearing loss disability for VA purposes. Regardless however, the absence of hearing loss in service is not fatal to the claim. The Board next finds the weight of the evidence demonstrates that symptoms of hearing loss and tinnitus have not been continuous since service separation. The earliest documented complaints of hearing loss and tinnitus were not until December 1988. The approximate 7 year-period between service and the onset of complaints of hearing loss and tinnitus is one factor that weighs against a finding of service incurrence, but is not the only factor relied upon by the Board in this case. The Board's reliance on multiple factors, only one of which is an absence of complaints or treatment during service or after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court's precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Another factor considered is the Veteran's lay reports as to the date of onset of her hearing loss and tinnitus. In this regard, the Board finds her lay assertions internally inconsistent. During her February 1989 consultation, she specifically noted that she did not have any hearing sensitivity, but had tinnitus that began about two years earlier, and she first noted symptoms in late-December 1988. Thereafter, during her March 2012 VA examination, she stated that her tinnitus began in 1982, two years after separation from service. Later, in October 2012 correspondence, she indicated that she had ringing in the ears during service, which became more constant after an altercation with another enlisted soldier. Given the multiple inconsistencies, the Board assigns less probative value to the Veteran's lay reports regarding any chronic symptoms during service, continuity since service, and onset. Her lay reports are inconsistent with, and outweighed by, the objective medical evidence of record which shows no chronicity or continuity of symptomatology For these reasons, the Board finds that the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on either "chronic" symptoms in service or "continuous" symptoms since service have not been met. Additionally, the evidence does not show that hearing loss or tinnitus manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation. The earliest record of both bilateral hearing loss and tinnitus was not until the Veteran reported for a VA consultation in January 1989, at which time, objective medical findings showed normal hearing in both ears at all frequencies. The earliest confirmed diagnosis of hearing loss was not until a September 2003 audiology examination at the Loma Linda "HCS." Therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. Furthermore, the Board finds that service connection for bilateral hearing loss and tinnitus is also not warranted on a direct basis. In this regard, the Board finds that the March 2012 VA examiner's medical opinion that the Veteran's bilateral hearing loss and tinnitus are less likely related to service is adequate to decide the claim and of significant probative value. Indeed, it is based on an accurate history of symptoms, diagnoses, and treatment, and provides a sound rationale. The examiner considered the Veteran's reports of loud noise exposure, falling and hitting her head, and the reported altercation, but found no nexus to the Veteran's claimed disabilities. As a lay person, the Veteran is competent to report past and current hearing difficulty and tinnitus symptoms; however, she does not have the requisite medical expertise to render a competent medical opinion regarding the relationship between current tinnitus or hearing loss and active service. An opinion as to causation involves making findings based primarily on medical knowledge of the etiology of auditory disorders and is a complex medical etiological question dealing with the neurologic system (acoustic trauma and nerve damage). On the other hand, the March 2012 VA audiologist has expertise and training in the area of auditory disorders and has a provided competent medical opinion unfavorable to both claims. The March 2012 VA opinion outweighs the lay evidence as to etiology in this case. Accordingly, the Board finds that the evidence weighs against finding that the Veteran's bilateral hearing loss disability or tinnitus was causally or etiologically related to service; therefore, service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For these reasons, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs