Citation Nr: 1736651	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-16 453	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.




Marcus J. Colicelli, Associate Counsel


The Veteran had honorable active duty service from January 30, 1986 to July 22, 1990.  He also had dishonorable active duty service from July 23, 1990 to August 24, 1995.  

These matters come before the Board of Veterans' Affairs (Board) on appeal from an October 2011 decision by the RO which denied the benefits sought on appeal.  

In March 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A hearing transcript has been associated with the record.

This matter was last before the Board in May 2016 where it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives as the record reflects that the RO has obtained updated treatment records, and the record has been supplemented with a VA examination report and medical opinion concerning the nature and etiology of the Veteran's hearing loss.  The AOJ has completed the requested development and no further action is necessary to comply with the Board's remand directives.  The matter is once again before the Board for appellate consideration of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999).


1.  The Veteran's active duty records and records fail to reflect the presence of the claimed disabilities.

2.  The earliest medical evidence of any audiological disorder was dated in 2011.

3.  A VA medical examiner concluded the Veteran's hearing loss was not related to military service, and that his tinnitus was related to the non-service connected hearing loss.

4.  The Veteran did not have honorable active military service during a period of war.  


1.  Entitlement to service connection for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016).

2.  Entitlement to service connection for tinnitus is not warranted. 38 U.S.C.A. § 1110  (West 2014); 38 C.F.R. § 3.303 (2016).


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.

A letter dated in August 2010, sent prior to the unfavorable decisions issued in October 2011, advised the Veteran of the information and evidence necessary to substantiate his claims for service connection as well as his and VA's respective responsibilities in obtaining such evidence and information.  

In addition, the Veteran has not alleged prejudice with respect to any such notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Relevant to the duty to assist, the Veteran's service treatment records, VA outpatient treatment records, and various private treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  A February 2011 letter requested that the Veteran provide the names and addresses of all VA and non-VA healthcare providers who treated him for his claimed disabilities.  However, the Veteran did not complete an appropriate authorization form to allow VA to obtain any additional records or identify any other VA or non-VA providers.  The Board emphasizes that "the duty to assist is not always a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  In addition, pursuant to the instructions of the May 2016 Board Remand decision, the Veteran was provided with a VA medical examination in August 2016 and the examination report is adequate because it is based upon consideration of the relevant facts particular to this Veteran's medical history, describes the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contains reasoned explanations.  See Barr v. Nicholson, 21 Vet. App. 303, 311  (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Therefore, the Board finds that VA has satisfied its duty to assist in this regard.

Additionally, in March 2016, the Veteran was provided an opportunity to set forth his contentions before the undersigned Veterans Law Judge in a hearing that fully conformed to the tenets of 38 C.F.R. § 3.103(c)(2) as detailed in Bryant v. Shinseki, 23 Vet. App. 48 (2010). 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  

Service Connection 

Applicable Laws

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2014).  In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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, or 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. 

In addition, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of 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.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309.

"[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). 

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Appellant.  38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102.

Facts & Analysis

The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus.  He asserts that his current hearing problems began "a couple of years ago" and in some statements and testimony indicated that the current problems are due to acoustic trauma that occurred during service.  See April 2011 VAMC Audiology Consult; see also November 2010 VAMC Audiology Consult ("Patient was unsure re: onset, saying that it 'could have been several years' ago.")  

Under the first Shedden element, the competent evidence must show that the Veteran has a current disability.  Audiometric testing has demonstrated diagnoses of tinnitus and sensorineural hearing loss in both of the Veteran's ears.  See i.e August 2016 VA examination, see also November 2010 VAMC Audiology Consult ("Dx: Sensorineural hearing loss: Bilateral Tinnitus, subjective").  As such, the first element of Shedden, a current disability, has been satisfied.  See Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004)

However, the evidence is against the conclusion the second and third Shedden elements have been met.  The Veteran's DD214 reflects that he worked in an administrative capacity which, as noted by the August 2016 VA examiner, put him in a low likelihood environment for noise exposure.  This is reinforced in the Veteran's service treatment records (STRs) which show no complaints, treatment, or diagnoses of any audiological issue, outside of a February 1986 issuance of hearing protection.  Moreover, the record demonstrates inconsistent statements from the Veteran that his audiological diagnoses are due to military noise exposure.  At his hearing, the Veteran testified that while his military occupational specialty (MOS) in an administrative capacity as reflected in his DD214, he was still "around a lot of aircraft and tanks" due to his assignment in "some units which had some pretty loud equipment."  See March 2016 Board Hearing transcript.  This testimony mirrors the history reported to the August 2016 VA examiner, but is at odds with the history reflected in the earliest audiological treatment notes of record where the Veteran referenced "explosions" or outright denied acoustic trauma.  Compare April 2011 VAMC Audiology Consult ("Patient denied the following: Noise exposure"); with November 2010 VAMC Audiology Consult ("history of exposure to explosions and helicopters while in the military").

Pursuant to the directives of the May 2016 Board Remand, the Veteran was afforded a VA audiological examination in August 2016.  Following an in-person examination and a review of the Veteran's VA e-folder, the examiner identified current diagnoses of bilateral sensorineural hearing loss and tinnitus, and opined that the audiological disorders were less likely than not due to service.  Specifically, the examiner concluded that the Veteran's tinnitus was due to the hearing loss and reasoned that the hearing loss was "more likely than not" an idiopathic etiology rather than due to military service, explaining that "there can be many causes including age, family history, noise exposure and ototoxic drugs and alcohol, head trauma, diabetes, renal failure...any of these may have contributed to the Veteran's hearing loss."  The examiner further explained that there was "no evidence...of exposure to hazardous levels of noise during military service," noting the Veteran's testimony regarding exposure to "aircraft and tanks" and his past denial of any acoustic trauma.

The Board considers the opinion of the August 2016 VA examiner to be highly probative as to the issue of etiology/nexus as it was rendered after a thorough review of the Veteran's claims file and his medical history, and is consistent with other evidence of record, including STRs and post-service treatment records.  It also contains a well-supported rationale.  See, e.g., Prejean v. West, 13 Vet. App. 444   (2000).  Moreover, there are no probative medical opinions of record to the contrary.  

Regarding lay evidence, the Board notes that while the Veteran is competent to observe he has decreased hearing acuity and ringing in his ears, he is nevertheless not competent to relate the loss of hearing acuity to active-duty noise trauma.  He is a layperson, and lacks the training/expertise to opine competently on a medical question such as that presented in the instant case (i.e., whether in the absence of a showing of onset in service and post-service continuity a hearing loss disorder and tinnitus first documented many years after service/exposure to noise trauma therein may be related to such trauma rather than to intervening etiological factors).  See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer).  Lastly, in his statements regarding his hearing loss exposure, the Veteran has been found to be inconsistent in his testimony, a fact that has been found to be significant to the August 2016 VA examiner and also persuasive to the Board.

Thus, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current hearing loss and tinnitus and his service.  As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply; the appeal for must be denied.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


Entitlement to service connection for bilateral hearing loss, is denied.

Entitlement to service connection for tinnitus, is denied.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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