Citation Nr: 0810292 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-21 428A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a heart disorder to include as secondary to service-connected anxiety reaction. REPRESENTATION Appellant represented by: Veterans of World War I of the U.S.A., Inc. ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran served on active duty from January 1942 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for bilateral hearing loss, tinnitus, and a heart condition. The issues of entitlement to service connection for tinnitus and for a heart disorder to include as secondary to service- connected anxiety reaction are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The veteran's bilateral hearing loss, although considered disabling for VA purposes under 38 C.F.R. § 3.385, began after his active duty and was not caused by any incident of service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service, and an organic disease of the nervous system (sensorineural hearing loss) is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in April 2004, September 2004, and April 2005; rating decisions in July 2004 and May 2005; and a statement of the case in May 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. As the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection for bilateral hearing loss, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in a supplemental statement of the case issued in January 2008. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination and opinion in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). With chronic disease shown as such in service, or within a pertinent presumption period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology after discharge is required only where the condition noted during service or in the presumption period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted if the evidence shows that the condition was observed during service and continuity of symptomatology was demonstrated thereafter, and if the evidence includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). To prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). When a disability is not initially manifested during service or within an applicable presumption period, service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred or aggravated during the veteran's service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (2007). This provision does not establish a presumption of service connection. It eases a combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service; both of these inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Although the veteran states that he has difficulty hearing, the audiometric test results must meet the regulatory requirements for establishing a disability. Then, if a current disability by VA criteria of bilateral hearing loss exists, there must be a determination of a relationship between that disability and an injury or disease incurred in service, or some other manifestation of the disability in service. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155 (1993). The veteran claims that he was exposed to acoustic trauma due to combat in service and, as a result, suffers bilateral hearing loss. According to his service separation record, the veteran's military occupation specialties were radio operator, scout observer, and field artillery fire control. Upon careful review of all the evidence of this case, the Board finds that no competent medical evidence of record relates the veteran's bilateral hearing loss to service. Service medical records are negative for complaints, findings, or diagnosis of bilateral hearing loss. Thus, the evidence does not show a level of hearing at the time of separation from service that is considered disabling for VA purposes under 38 C.F.R. § 3.385. The Board notes that the veteran filed a claim for VA disability benefits at the time of his separation from service in August 1945 which did not include bilateral hearing loss. At a July 2004 VA audiological examination, the veteran complained of bilateral hearing loss which was first noticed 25 to 35 years earlier. He reported that in service he was a forward observer for artillery for more than three years and denied post service occupational or recreational noise exposure. The veteran's auditory thresholds for the right ear at the frequencies of 2000 and 3000 Hertz were 40; and the threshold at the frequency of 4000 Hertz was 50. The veteran's auditory thresholds for the left ear at the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz were greater than 40. In addition, his speech recognition score using the Maryland CNC Word List for his right ear was 82 and for his left ear was 52 percent. Thus, his level of hearing in both ears is considered disabling for VA purposes under 38 C.F.R. § 3.385. The VA examiner diagnosed mixed hearing loss. The VA examiner stated that the relationship between the hearing loss and military service was purely speculative. That is, the evidence did not support an opinion in the veteran's favor. The examiner stated that the veteran's current right ear sensorineural hearing loss was not unexpected for his age. The veteran's left ear hearing appeared to have a conductive component and this was not likely caused by military noise exposure. VA outpatient treatment records show that the veteran was provided with hearing aids in November 2004. These records show treatment to improve the veteran's hearing, however they do not provide a link between the veteran's current bilateral hearing loss and service. The veteran believes that he has bilateral hearing loss related to service. While the veteran is capable of providing evidence of symptomatology, a layperson is generally not capable of opining on matters requiring medical knowledge, such as the degree of disability produced by the symptoms or the condition causing the symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board notes that, although the veteran is not competent to render a medical opinion or formulate an etiology of his current hearing loss, he is competent to present evidence of noise exposure. Collette v. Brown, 82 F.3d 389 (1996). The Board finds that the veteran's service medical records do not show bilateral hearing loss that is recognized as a disability under the provisions of 38 C.F.R. § 3.385. Organic diseases of the nervous system, to include sensorineural hearing loss, are entitled to presumptive service connection if manifest to a compensable degree within one year of discharge. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is no post-service medical evidence of record showing bilateral sensorineural hearing loss manifested to a compensable degree within one year following separation from active service. Therefore service connection is not warranted on a presumptive basis. The veteran contends that VA may not use age to deny a claim. For some VA claims, the claim must be evaluated without consideration of the veteran's age, however, this case is not one to which that applies as, in this instance, the audiological examiner related the etiology of the claimed disorder to the veteran's age. The veteran currently has bilateral hearing loss that constitutes a disability as defined by 38 C.F.R. § 3.385. However, the probative medical evidence does not link current bilateral hearing loss to service or any incident in service. The Board finds that the probative medical evidence provides negative evidence against this finding. The examiner found that the type of left ear hearing loss was not likely caused by military noise exposure and the right ear sensorineural hearing loss was not unexpected for his age. Furthermore, the evidence does not show hearing loss disability in service or to a compensable degree within one year following his separation from service. As the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND The veteran seeks entitlement to service connection for a heart disorder to include as secondary to his service- connected chronic anxiety reaction. The Board notes that an August 1945 rating decision granted service connection for psychoneurosis, anxiety manifested by several symptoms which included occasional pain in the chest. At a May 2004 VA heart examination, the examiner's review of the claims file and electronic medical records found no mention that the veteran had a heart condition. He had hypertension, diabetes mellitus, and hyperlipidemia, which in addition to chronic emotional anxiety and stress/anxiety neurosis were predisposing factors or risks for a heart condition. The examiner noted that it was as likely as not that his episodes of grabbing chest pain associated with tachycardia at the time of examination were a heart related condition predisposed by anxiety due to stress. The examiner noted this might be an angina type symptom but as the veteran had not had any cardiac work up there was no possible way to diagnosis it definitely as a heart condition. The examiner concluded that an opinion about the veteran's current heart status would be speculative, considering the presence of multiple risk factors for a heart condition. The issue could not be resolved without further examination with further testing, possibly even a cardiac catheterization to definitely evaluate his heart status. Private medical records show that in August 2004, a few months after the VA heart examination, the veteran underwent a cardiac catheterization, angioplasty, and stent. The summary of the procedure included stenosis of proximal circumflex artery, right coronary artery disease, and mitral and aortic valve disease. Based on these additional medical records which show a current heart condition, further development is needed. These records should be reviewed by the May 2004 medical examiner and an addendum to the medical opinion provided as to whether there is a link between the veteran's service-connected anxiety disorder and a heart disorder. 38 C.F.R. § 3.159(c)(4) (2007). The Board further notes that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service- connected disorder has aggravated a nonservice-connected disability, but in such a case the veteran may be compensated only for the degree of additional disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Thus, the medical examiner should also address whether the veteran's service- connected anxiety disorder has aggravated any heart condition. In addition, the veteran seeks entitlement to service connection for tinnitus claimed as due to acoustic trauma in service during combat. As discussed above, he related having been a forward observer for artillery for more than three years during military service and denied occupation or recreational noise exposure. At a VA audiological examination in July 2004, he stated that the tinnitus was unilateral, in his left ear, and was constant. The examiner diagnosed subjective tinnitus and opined that the relationship between the tinnitus and military service was purely speculative. He found that the evidence did not support an opinion. However, he did not provide a rationale for that opinion. It would be helpful to know the basis for his opinion prior to a determination, thus, further development is needed. 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the case is REMANDED for the following action: 1. After securing the pertinent information and necessary authorization, request private medical records and VA medical records pertaining to the veteran's heart condition from August 2004 to the present time. 2. After any additional medical records are received and associated with the claims file, request that the VA physician who provided a heart examination and opinion in May 2004 provide an addendum. The claims folder must be made available to and be reviewed by the examiner and the review should be noted in the report. If an additional examination is necessary, schedule one. If the examining physician is no longer available, please have another VA physician review the claims file and provide the requested opinion with the option of an additional examination if needed. The examiner should opine whether it is as likely as not (50 percent or greater probability) that the veteran's heart condition is etiologically related to service or to his service-connected chronic anxiety reaction. The examiner should further state whether it is as likely as not (50 percent or greater probability) that the heart condition is aggravated (permnently increased in severity beyond the natural course of the condition) by the chronic anxiety reaction. A rationale should be provided for all opinions expressed. 3. Request that the VA audiologist who performed an audiological examination in July 2004 provide a rationale for his opinion that the relationship between the veteran's tinnitus and military service was purely speculative. The examiner should opine whether it is as likely as not (50 percent or greater probability) that the veteran's tinnitus is related to noise exposure in service and provide a rationale for the opinion. The claims folder must be made available to and be reviewed by the examiner in conjunction with the review and the review should be noted in the report. If an additional examination is necessary, schedule one. If the examining VA audiologist is no longer available, please have another VA audiologist review the claims file and provide the requested opinion with the option of an additional examination, if needed. 4. Then, readjudicate the veteran's claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and allowed the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs