Citation Nr: 0809650 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 05-33 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for right ear sensorineural hearing loss. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from March 1968 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case was brought before the Board in July 2007, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the veteran in the development of his claims, to include providing the veteran a VA audiological examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The veteran is not currently diagnosed with right ear sensorineural hearing loss for VA purposes; any current right ear sensorineural hearing loss was not manifested in service or within one year of service discharge, nor is it etiologically related to his active service. CONCLUSION OF LAW Right ear sensorineural hearing loss was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the veteran received notification prior to the initial unfavorable agency decision in June 2003. The RO's December 2002 notice letter advised the veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claim. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with claims file. The appellant has not identified any additional treatment records that should be obtained. The veteran was afforded VA audiological examinations in May 2003, September 2005 and October 2007. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). The veteran maintains that his currently diagnosed bilateral hearing loss is the direct result of his active service. He asserts that he experienced a significant amount of in- service acoustic trauma as a member of a mortar platoon. In the case of a 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, the Secretary of 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 in-service occurrence 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 occurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, competent evidence of a current disability and of a link between the current disability and service is still required despite the evidentiary effect of 38 U.S.C.A. § 1154(b). See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995). The statute "does not create a statutory presumption that a combat veteran's alleged disease or injury is service- connected," but only "considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service- connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service." Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). In an August 2005 statement of the case, the RO determined that the veteran had engaged in combat with the enemy. The RO found that the veteran's descriptions of his experiences, along with statements from other veterans who had served in the same mortar platoon, were consistent with those of an infantryman; and, therefore, that the veteran experienced combat in Vietnam. The Board concurs. Accordingly, the Board observes that the veteran's description of his noise exposure, to include mortar explosions, is consistent with that a member of the infantry would experience in combat. Applying § 1154(b), the Board finds that the veteran's description of his in-service injury, i.e., that he suffered acoustic trauma as a result of a mortar fire is consistent with the circumstances of combat. With regard to other sources of injury to the veteran's hearing, as discussed herein, the Board does not dispute the veteran's claims of in-service noise exposure. Therefore, further consideration of the veteran's claims under 38 U.S.C.A. § 1154(b) is not necessary. 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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 (2007). Upon review, service medical records are negative for a hearing loss disability in the right ear. Post service medical evidence includes the reports of May 2003 and October 2007 VA audiology examinations. The examinations indicated the following puretone thresholds in the right ear: HERTZ 500 1000 2000 3000 4000 MAY 2003 5 5 10 25 30 OCT. 2007 5 10 15 30 35 Speech audiometry revealed speech recognition ability in the right ear of 96 percent in May 2003 and 94 percent in October 2007. Both VA examiners indicated that the veteran's hearing in his right ear was within normal limits per VA guidelines. Considering the results of the May 2003 and October 2007 VA examinations, it is clear that the veteran does not currently suffer from a current hearing loss disability for VA benefit purposes. His puretone thresholds, at 500, 1000, 2000, 3000, and 4000 Hertz, were less than 40 in all frequencies, and he did not show puretone thresholds of 26 or more in 3 or more frequencies in his right ear. His scores on the Maryland CNC Test were not less than 94 percent at either examination. The veteran has not identified any post-service testing revealing the presence of hearing loss disability for VA compensation purposes. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Other than the veteran's contentions, the record contains no competent evidence of a current diagnosis of right ear sensorineural hearing loss. As such, the Board concludes that the preponderance of the evidence is against a finding that the veteran has a right ear hearing loss disability for VA purposes. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Even though the veteran does not currently suffer from a right ear hearing loss disability for VA purposes, the Board observes that the Court has held that VA regulations do not preclude service connection for a hearing loss that first met VA's definition of disability after service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, even though the veteran has not demonstrated a current disability, the Board will consider whether there is an etiological link between any right ear hearing loss and the veteran's active service. Service medical records are negative for any findings of treatment or diagnosis of right ear hearing loss. On examination pending service discharge in November 1969, the veteran's hearing was normal. There were no findings pertaining to complaints of hearing loss. There is no evidence of record to indicate the veteran complained of or sought treatment for right ear hearing loss until November 2002, over 30 years post-service. As there was no hearing loss for VA purposes shown within one year of service discharge, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309(a). The lapse in time between service and the first complaints of hearing loss also weighs against the veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). As noted above, the veteran was provided audiological examinations in May 2003, September 2005 and October 2007. While the September 2005 VA examiner found it "at least as likely as not" that the veteran's current hearing loss is related to service, both the May 2003 and October 2007 VA examiners found that the veteran's current hearing loss is "not likely" related to service. In deciding whether the veteran's right ear hearing loss is etiologically related to his active service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). Here, there are legitimate reasons for accepting the May 2003 and October 2007 VA examiners' unfavorable medical opinions over the favorable September2005 VA examiner's opinion. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Also, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). While the September 2005 VA examiner offers a favorable opinion, she does not offer any rationale for this opinion. As such, the September 2005 VA examiner's opinion is not probative enough to warrant entitlement to service connection. See Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). In comparison, the May 2003 and October 2007 VA examiners did offer a rationale for their opinions, namely citing the length of time between active service and first complaints of hearing loss. In addition, the October 2007 VA examiner noted that "[t]here is no scientific evidence to support the claim that noise exposure from the past can cause hearing loss in the future." Thus, the Board finds that the VA examiners' May 2003 and October 2007 medical opinions are accordingly more probative than that rendered by the September 2005 VA examiner. The Board also acknowledges that the veteran himself has claimed he currently suffers from a right ear sensorineural hearing loss disability that is etiologically related to active service. However, as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the veteran has not provided competent medical evidence establishing that he currently suffers from a right ear hearing loss disability for VA purposes. In addition, both the May 2003 and October 2007 VA examiners found it is not likely that any right ear hearing loss suffered by the veteran is a function of his in-service acoustic trauma. While the evidence of record does contain a medical opinion in support of the veteran's claim, the Board finds that this opinion is not probative, as it is not supported by any rationale. There is no other competent medical evidence included in the record to support the veteran's assertion that he currently suffers from a right ear hearing loss disability that is etiologically related to his active service. In addition, the absence of any medical records of a diagnosis or treatment for over thirty years after service is probative evidence against the claim for direct service connection. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a right ear sensorineural hearing loss, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for right ear sensorineural hearing loss is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs