Citation Nr: 0809703 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-25 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty from June 1955 to July 1959. Procedural history This case comes to the Board of Veterans' Appeals (the Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (the RO) in which service connection was denied for bilateral hearing loss and tinnitus. Issues not on appeal In the November 2004 rating decision, service connection was denied for a lung condition and asbestosis. The veteran filed a timely Notice of Disagreement (NOD) as to those denials. In a July 2005 Decision Review Officer (DRO) decision, service connection was granted for asbestosis with chronic obstructive pulmonary disease effective July 12, 2004; a noncompensable (zero percent) disability was assigned. To the Board's knowledge, the veteran has not disagreed with the assigned rating or its effective date. This matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. FINDINGS OF FACT 1. The veteran was exposed to hazardous noise during service. 2. The veteran has been diagnosed with bilateral hearing loss. 3. The competent medical evidence indicates that the veteran's bilateral hearing loss is not related to the in- service noise exposure or to any other incident of his military service. 4. The veteran has been diagnosed with tinnitus. 5. The competent medical evidence indicates that the veteran's tinnitus is not related to the in-service noise exposure or to any other incident of the veteran's military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the veteran's military service, and such may not be so presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by the veteran's military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for bilateral hearing loss and tinnitus. Because these issues involve the application of similar law to the same facts, the Board for the sake of economy will discuss them together. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 (the VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of these issues has proceeded in accordance with the provisions of the law and regulations. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims for service connection for bilateral hearing loss and tinnitus in a letter sent in August 2004, which was specifically intended to address the requirements of the VCAA. The VCAA letter informed the veteran of the evidence necessary to establish service connection. Accordingly, the veteran was informed of the information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims of service connection for bilateral hearing loss and tinnitus. As for the evidence to be provided by the veteran, in the VCAA letter the RO asked the veteran to identify and send relevant medical evidence. The RO provided the veteran with VA Form(s) 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for each private or other non-VA doctor and medical care facility that treated him for his claimed disabilities. Moreover, in the August 2004 VCAA letter, the veteran was informed that VA would provide a medical examination or obtain a medical opinion if it is necessary to make a decision on his claims. [A VA examination was conducted in October 2004.] In the August 2004 VCAA letter, the veteran was advised that VA was responsible for getting relevant records from any Federal agency, to include records from the military, VA medical centers (including private facilities where VA authorized treatment), and the Social Security Administration. The veteran was also informed that VA make reasonable efforts on his behalf to get relevant records not held by a Federal agency, including records from state and local governments, private doctors and hospitals, and current or former employers. In the VCAA letter, the RO told the veteran that he should submit any evidence in his possession relevant to his claims, as follows: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." See the August 17, 2004 VCAA letter, page 3. The VCAA letter thus complied with the "give us everything you've got" requirement of 38 C.F.R. § 3.159(b)(1) because the letter informed the veteran that he could submit or identify evidence other than what was specifically requested by VA. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. In this case, the claims for service connection for bilateral hearing loss and tinnitus were initially adjudicated by the RO in November 2004, after the August 2004 VCAA letter. Therefore, the timing of the VCAA notice which was given with regard to the four elements of 38 U.S.C.A. § 5103 is not at issue. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, elements (1) and (2) are not in dispute. Element (3), connection between the veteran's service and the disability, is in dispute, and that matter was addressed by the VCAA letter described above. The RO has not addressed element (4), degree of disability, and element (5), effective date, in a VCAA letter. However, because the Board concludes below that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, any questions as to the appropriate disability ratings and effective dates to be assigned are rendered moot. The Board accordingly finds that there is no prejudice to the veteran as to the lack of notice as to the fourth and fifth elements in Dingess/Hartman. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his service connection claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. The evidence of record includes the veteran's service medical records, VA treatment records, and a report of the October 2004 VA examination, which will be described below. The Board finds that all relevant evidence necessary for an equitable resolution of these issues has been identified and obtained. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of these issues has been consistent with the provisions of the VCAA. The veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2007). He has retained the services of a representative who presented argument on his behalf. He has not requested a Board hearing. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. Relevant law and regulations Service connection - in general Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 2002). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a) (2007). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection - hearing loss For certain chronic disorders, including sensorineural hearing loss, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2007). See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 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 (2007). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a 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 fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the veteran's claim. See 38 C.F.R. § 3.303(b) (2007). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. Analysis With respect to Hickson element (1), current disability, there is medical evidence that the veteran currently has a bilateral hearing loss as defined by VA. The report of the October 2004 VA audiological examination shows that the puretone thresholds at 3000 and 4004 Hertz in the left ear are 70 and 75 decibels, respectively, and that the puretone threshold at 4000 Hertz in the right ear is 50 decibels. See 38 C.F.R. § 3.385 (2007). A July 2004 VA audiological examination for treatment purposes and the report of the October 2004 VA audiological examination reflect a diagnosis of tinnitus. The Board finds that element (1) is satisfied as to both bilateral hearing loss and tinnitus. With respect to element (2), the Board will separately discuss in-service disease and injury. Concerning in-service disease, a review of service medical records reveals no evidence of hearing loss disability as defined by VA in either ear. In particular, the report of the veteran's June 1959 discharge examination was pertinently negative. The Board observes in this connection, however, that no standard audiology testing was performed; instead, a "whisper voice test" was administered, which reportedly showed 15/15 in each ear. The veteran was given a physical profile of 1 for hearing on the entrance examination. [See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); [Observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). Under the categories of PULHES, the "H" stands for "hearing"; the number "1" indicated that he had a high level of medical fitness upon his entrance into service. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993).] This was not changed during his term of service. Furthermore, the record does not reflect medical evidence showing any manifestations of hearing loss during the one- year presumptive period after separation from service. See 38 C.F.R. §§ 3.307, 3.309. Hearing loss was initially diagnosed in 2004, several decades after service. Also, the veteran's service medical records do not reflect a diagnosis of tinnitus. Accordingly, Hickson element (2) is not met with respect to disease as to either bilateral hearing loss or tinnitus. Turning to in-service incurrence of injury, the veteran has asserted that he was exposed to loud noises as a machinist mate working in the engine room of a ship. The Board accepts that he may have been exposed to acoustic trauma. In-service incurrence of injury, that is to say hazardous noise exposure, has arguably been shown, and Hickson element (2) is therefore satisfied to that extent as to both bilateral hearing loss and tinnitus. Moving to the element (3), medical nexus, there is conflicting evidence on this crucial matter. The evidence relating the bilateral hearing loss and tinnitus to in-service noise exposure is a July 2004 VA audiological evaluation. The evidence against the veteran's claim includes the report of the October 2004 VA examination. Both reports were signed by the same individual, J.S., Ph.D. By law, the Board is obligated under 38 U.S.C. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board has carefully evaluated the medical evidence, and for reasons stated immediately below finds that the evidence against the claim (i.e., the medical opinion which found no relationship between the veteran's bilateral hearing loss and tinnitus and his in-service noise exposure) outweighs the evidence in favor (the medical opinion which found such a relationship). The arguably favorable July 2004 VA audiological evaluation lacks significant probative value because it is couched in less than conclusive terms. The examining audiologist stated that the hearing loss and tinnitus were "possibly the result of acoustic trauma during military service." The Court has held that medical opinions which are speculative or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board additionally observes that the examining audiologist did not provide any rationale supporting his conclusion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Furthermore, there is no indication that the examining audiologist reviewed the veteran's claims file. By contrast, there is also of record the very thorough, three-page report of the October 2004 VA examination. The same VA audiologist opined that it is not as likely as not that hearing loss and tinnitus resulted from military service. The audiologist's rationale for the opinion was that there was a normal whisper test on separation and that although the veteran's service medical records had referred to other medical concerns, there was no report of concerns related to hearing, the ears in general, or tinnitus. The examiner also noted that the veteran had waited 45 years to file a claim and that the veteran had had post-service noise exposure from work and hunting. The examiner added that the right ear results were not significantly different from hearing results that are attributed to normal aging. The Board attaches great weight of probative value to this opinion, which unlike that in August 2004 VA was based on a review of the record and provided bases for the opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."] The Board additionally observes that the October 2004 VA medical opinion appears to be congruent with the other medical evidence of record, to include in addition to the pertinently negative service medical records the report of a February 1964 VA Compensation and Pension (C&P) examination, which reflects no complaints of hearing loss or tinnitus and reveals that the veteran's hearing was "good." Moreover, there are no medical records for several decades after service showing complaints, treatment, or diagnosis of hearing loss or tinnitus. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]; see also 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]; 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]. In an addendum to an August 2005 VA Form 646, the veteran's representative in essence challenges the opinion of the October 2004 VA examiner by arguing that the fact that the veteran waited 45 years to file his claims is totally irrelevant or of little significance. The Board disagrees. The veteran's initial report of bilateral hearing loss and tinnitus in fact was not asserted until many years after separation from service, incident to his July 2004 claim for VA benefits and many decades after service. Significantly, the veteran filed a claim for VA disability benefits [VA Form 21-526] in January 1964 in which he mentioned only a left knee condition. It does not stand to reason that the veteran would file a claim for one disability which he believed was related to service without mentioning any others. See Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]. The October 2004 VA examiner could give weight to that fact in rendering a medical opinion. In the February 2008 informal hearing presentation, the veteran's representative, citing Godfrey v. Derwinski, 2 Vet. App. 352 (1992), argued in essence that the October 2004 VA examiner improperly relied on "the fact that the veteran did not show a hearing loss or tinnitus in the military." See February 2008 informal hearing presentation, page 2. As the representative correctly states, it "is not necessary for the veteran to show a hearing loss in the military in order to now be service connected. See 38 C.F.R. § 3.303(d) [service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service]. However, this hardly means that service medical records must be ignored. The Court in Godfrey merely holds that the Board, as a finder of fact, cannot treat the lack of evidence that a veteran experienced hearing loss during service as dispositive of that veteran's claim. See Godfrey, 2 Vet. App. at 356; see also Forshey, supra. This is consistent with the Court's jurisprudence in general, which holds that any conclusions which are drawn by the Board must be based on the entire record. See, e.g., Baldwin, supra; see also Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) [in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence]. In this connection, the lack of in-service complaints was one of a number of factors considered by the October 2004 VA examiner, including: no indication of complaints for decades after service; post-service noise exposure; and diagnostic testing which evidently was consistent with age-related hearing loss [the veteran was 68 years of age at the time of the examination]. In the February 2008 informal hearing presentation, the veteran's representative further contended that the whisper test does not prove or disprove normal hearing. The Board disagrees. While audiometric testing is undoubtedly more precise than whisper voice test, the whisper voice test is an alternative means of testing hearing. In that regard, 15/15 feet for whispered voice test, which was the veteran's test result, is considered "normal." See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). The veteran and his representative are contending that his bilateral hearing loss and tinnitus are related to his in- service noise exposure. However, it is now well established that laypersons, such as the veteran and his representative, without medical training are not competent to comment on medical matters such as etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992) [lay persons without medical training are not competent to comment on medical matters such as diagnosis and etiology]; see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Board accordingly finds that a preponderance of the competent medical nexus opinion evidence is against the veteran's claims. That is, the report of the October 2004 VA examination outweighs what amounts to a preliminary opinion from the same examining audiologist. With regard to the veteran's assertion of continuity of symptomatology as to ringing in his ears since active service, the Board is of course aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. As discussed in detail above, such evidence is lacking in this case. There is no competent medical evidence that the veteran was diagnosed with or treated for hearing loss tinnitus until decades after his separation from service, and again notes that his report of tinnitus was not asserted until many years after separation from service. See Shaw, supra; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. Indeed, in his July 2004 claim, the veteran acknowledged that he had never received treatment for his hearing loss or tinnitus. Particularly damaging to the veteran's claim is the report of the February 1964 VA C&P examination, in which the veteran's hearing was described as "good". The veteran evidently reported no ear or hearing complaints . Continuity of symptomatology after service has therefore not been demonstrated. In summary, in the absence of the third required Hickson element, medical nexus, the Board concludes that a preponderance of the evidence is against the claims of entitlement to service connection for bilateral hearing loss and tinnitus. The benefits sought on appeal are accordingly denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs