Citation Nr: 1801678 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-08 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Sean A. Kendall, Attorney At Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. C. King, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from May 1966 to May 1968. The record reflects that the Veteran was a communication center specialist with service in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, denying the claims currently on appeal. In August 2017, the Veteran provided testimony at videoconference hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. The record consists of the Veteran's electronic records within Virtual VA and the Veteran's Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was not caused or aggravated by active military service. 2. The Veteran's tinnitus manifested as a result of his active military service. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is a chronic condition under 38 C.F.R. § 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that "shown as such in service" means "clearly diagnosed beyond legitimate question"). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). A. Bilateral Hearing Loss For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection for impaired hearing is only established when audiometric testing meets the specified pure tone and speech recognition criteria. Here, the record contains audiological reports indicating that the Veteran currently suffers from a hearing loss disability, as defined by 38 C.F.R. § 3.385. See Miracle Ear Audiogram dated July 2, 2012, VA Examination dated December 21, 2012, Hearing Rehab Center Audiometric Results dated March 18, 2014. The Veteran credibly reports experiencing in-service noise exposure as a result of rifle range training, and diesel generator and communications equipment noise that reverberated in the metal trailer he worked in during his active duty assignment, necessitating yelling to communicate on-duty. See e.g. Statement in Support of Claim dated May 17, 2013; Statement in Support of Claim dated March 12, 2014; Testimony from August 4, 2017. Noise exposure is appropriately conceded in this case. Thus, the remaining issue for resolution is whether the Veteran's current hearing loss disability is related to service. Prior to November 1967, service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. To convert, 15 dB is added at 500 Hz, 10 dB at 1000, 2000, and 3000 Hz, and 5 dB at 4000 Hz. Further, VA will consider audiometric data dated between January 1, 1967 and December 31, 1970 using either ISO-ANSI or ASA units, whichever is more favorable to the claimant, unless the audiogram clearly indicates which standard was used. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the tables below show the ASA measurements recorded in-service with the comparable ISO (ANSI) measurements in adjacent parentheses. On the entrance May 1966 audiological evaluation, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) On the induction examination, the ears and drums were noted to be normal. On the separation audiological evaluation in April 1968, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 10 (20) - 10 (15) LEFT 0 (15) 5 (15) 5 (15) - 15 (20) On the separation examination, the ears and drums were noted to be normal. Because the separation audiogram dated in April 1968 does not specify which standard was used, the Board will consider the data using ASA standards, which is more favorable to the Veteran. The Board notes the Veteran's contention that the separation examination did not record 3000 Hz measurements, but this does not render the remainder of the examination unusable. There is no evidence that the Veteran had a disability as defined under 38 C.F.R. § 3.385 at the time of separation from active service or within the one year presumptive period following service. However, a claimant may establish direct service connection for a hearing disability initially manifesting years after service on the basis that such is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). In Hensley, the court held that audiometric test scores showing a 15 to 30 dB decline in recorded threshold hearing levels, evidence of in-service noise exposure, and private physician's reports stating that the hearing loss was probably due to noise trauma required the Board to make a determination of causal relation of the current disability to service. Id. A December 2012 VA audiological evaluation noted a diagnosis of bilateral sensorineural hearing loss in the frequency ranges of 500 to 4000 Hz and 6000 Hz or higher. In the opinion, the examiner concluded that the hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner noted moderate hearing loss at 6000 Hz upon entry into service, and viewed the Veteran's hearing test at separation as normal. The examiner indicated that there was no scientific basis for the existence of delayed onset hearing loss due to acoustic trauma. The VA examination appears to have involved a full review of the Veteran's file, and the assertion that there is no scientific basis for the existence of delayed onset hearing loss due to acoustic trauma is unrebutted in the record. The VA examination is afforded substantial weight. An opinion from a private provider dated March 2013 noted the Veteran having worked in service inside of metal containers, and noted reports of noise exposure from generators and equipment. The private provider stated "I am sure the steel walls caused sound to reverberate. This most likely caused damage to the nerve at that time, but has not shown up for 40 [plus] years." The March 2013 private opinion does not reflect review of the Veteran's file, offers no scientific support for the notion that hearing loss can have delayed onset for over four decades, and does not identify any factors (other than self-reported noise exposure) to conclude a positive medical nexus. This opinion is accordingly afforded little probative weight. A private audiologist opinion dated March 2014 noted binaural sensorineural hearing loss based on audiometric results. The opinion was based upon the Veteran's account. The practitioner concluded that it was "at least as likely related to an injury, disease, or even occurring during his military service." The practitioner rationalized that "long term exposure to machine noise can damage the internal structures of the cochlea (inner and/or outer hair cells) resulting in permanent hearing loss." The practitioner opined that the degree of hearing loss sustained would depend on the intensity, duration and frequency of exposure, and stated that "tinnitus is often present when hearing loss is present, due to the trauma of the acoustic nerve." The opinion notes that the definitive way to establish hearing loss would have been an examination at separation from service, and notes that the next best option would be a careful and critical review of the service records. Because the opinion did not consider the separation examination or the service records and noted that such were important, the opinion is given little probative weight. The Veteran submitted an article on tinnitus in support of the contention that late onset tinnitus is linked to early hearing loss. Generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish the nexus element. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). As the article in question does not address causation of hearing loss (it discusses tinnitus and causation of tinnitus), it lacks sufficient relevance for the hearing loss nexus analysis to warrant greater discussion. Regarding the Veteran's assertion raised at the August 2017 Board hearing that his hearing has been "bad," the record does not reflect that the Veteran possesses the requisite expertise to provide any medical diagnosis, and his lay testimony is accordingly given no weight on such. See Jandreau v. Nicholson, 492 F.3d at 1374 (affirming that lay evidence is not competent to establish medical diagnosis or etiology). The Board does not otherwise find the Veteran's description of his symptoms to be sufficiently specific to add any probative value on the issue of hearing loss. It is worth noting the lapse of many years between the Veteran's separation from service and the first clinical evidence of his hearing loss. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). As the preponderance of the evidence indicates there is no nexus between the Veteran's hearing loss and his service, service connection is not warranted, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53. B. Tinnitus The Veteran also contends that he is entitled to service connection for tinnitus. As outlined below, the evidence of record demonstrates that it is at least as likely as not that the Veteran's tinnitus manifested as a result of active military service. Tinnitus is a condition which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). The Veteran credibly asserts that his current tinnitus began during service. As tinnitus is a subjective phenomenon, the Veteran is competent to report the history of its onset and that it has been continuously present since service. As noted above, in-service noise exposure is conceded. While the December 2012 VA audiological examination shows that the Veteran did not report recurrent tinnitus, he has consistently reported elsewhere that he has tinnitus that began in service and has continued since. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b). The claim of entitlement to service connection for tinnitus is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs