Citation Nr: 0810313 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-30 922 ) 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 K. Conner, Counsel INTRODUCTION The veteran served on active duty from July 1958 to April 1963. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for hearing loss and tinnitus. FINDING OF FACT The most probative evidence shows that the veteran's current hearing loss and tinnitus are not causally related to his active service or any incident therein, including exposure to acoustic trauma. CONCLUSION OF LAW Bilateral hearing loss and tinnitus were not incurred in active service, nor may such disabilities be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist Duty to Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of the VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (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. In this case, in an April 2004 letter issued prior to the initial decision on the claim, the RO notified the veteran of the information and evidence needed to substantiate and complete a claim of service connection, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. The letter also advised the veteran to submit or identify any additional medical reports that he felt would support his claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board acknowledges that the VCAA letter discussed above does not specifically satisfy all of the notice requirements of section 5103(a), particularly the additional requirements delineated by the Court in Dingess/Hartman. Nonetheless, the evidence does not show, nor does the veteran contend, that any notification deficiencies have resulted in prejudice. In that regard, the Board notes that with respect to the issues addressed in this decision, service connection has been denied. Thus, the additional Dingess/Hartmann elements of disability rating and effective date are not at issue and any notification deficiencies have not prejudiced the veteran at this juncture. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For the reasons discussed above, the Board finds that VA has fulfilled its VCAA notification duties to the veteran to the extent necessary. Neither the veteran nor his representative has argued otherwise. Duty to Assist Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In this case, the veteran's service medical records are on file. Despite being given the opportunity to do so, the veteran has neither submitted nor identified any post-service VA or private clinical records pertaining to his claim. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2007). The veteran has also been afforded a VA medical examination in connection with his claim. 38 C.F.R. § 3.159(c)(4) (2007). The Board finds that the report of this examination, as well as a subsequent addendum, provides the necessary medical opinion. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA duties to the veteran. A remand for additional notification or development would only result in unnecessarily delaying this matter with no benefit flowing to the veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, no further notification or development action is necessary on the issues now being decided. Again, neither the veteran nor his representative has argued otherwise. Background The veteran's service medical records show that at his June 1958 military enlistment medical examination, his hearing acuity was 15/15 on spoken and whispered voice testing. In-service medical records include a Hearing Conservation Data Worksheet which shows that the veteran was examined in April 1961. He reported that his military occupational speciality was hydraulic repairman. He indicated that he always or frequently wore elastic hearing protection during exposure to loud noise. Audiological testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) 45 (55) 50 (55) LEFT 10 (25) 10 (20) 10 (20) 10 (25) 20 (25) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented below by the figures in parentheses.) At his March 1963 military discharge medical examination, the veteran's ears were normal. In connection with his discharge examination, the veteran completed a report of medical history on which he specifically denied having ear trouble. Additionally, audiological testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 5 (15) 5 (10) LEFT 0 (10) 0 (10) 0 (10) 5 (15) 5 (10) In December 2003, the veteran submitted an original application for VA compensation benefits, seeking service connection for hearing loss and tinnitus. He indicated that during his military career, he had worked as an aircraft hydraulics mechanic on the flight line. He indicated that he had worn no ear protection during service and was constantly exposed to loud noise from aircraft engines. The veteran stated that he now suffered from severe hearing loss and a constant ringing in his ears. In connection with his claim, the veteran was afforded a VA medical examination in July 2004, at which he reported hearing loss and tinnitus. He indicated that he had had high risk noise exposure during service as an aircraft mechanic. He also acknowledged significant post-military noise exposure, stating that he had worked as a mechanic for a commercial airline for forty-two years. He was required to wear hearing protection. Audiological testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 95 105 105 LEFT 30 65 100 110 105 Speech recognition was 60 percent correct on the right and 40 percent correct on the left. The diagnoses were sensory hearing los and tinnitus, bilaterally. After examining the veteran and reviewing the claims folder, the examiner concluded that it was less likely than not that the veteran's hearing loss and tinnitus were caused by or the result of military service. The examiner explained that the fact that the veteran's March 1963 military separation audiometric examination was normal indicated a less than 50 percent probability that the veteran's current hearing loss and tinnitus were related to service. In a December 2004 medical opinion, a private audiologist indicated that he had reviewed the veteran's service medical records. She noted that the veteran's military occupational speciality had been aircraft hydraulics mechanic and that an April 1961 audiometric test showed a 45 decibel loss at 3,000 hertz and a 50 decibel loss at 4,000 hertz in the right ear. She further noted that the veteran recalled that he had not worn hearing protection during service, while he always wore hearing protection in his post-service occupation. Based on these factors, the examiner concluded that it was more likely than not that the veteran's current bilateral hearing loss and tinnitus were related to his active service. In an August 2005 medical opinion, a VA audiologist indicated that he had reviewed the veteran's claims folder and noted that his hearing had been shown to be normal at the time of his March 1963 military separation medical examination. With respect to the December 2004 opinion from the private audiologist, the examiner noted that such opinion was based on an April 1961 in-service audiogram, which had been conducted two years before the veteran's discharge. He noted that there were a variety of reasons for the temporary right ear hearing loss noted on the 1961 audiogram, including a temporary threshold shift, equipment calibration, headphone placement, or excessive cerumen. The VA examiner, however, noted that the military discharge audiogram, which apparently had not been available to the private audiologist, documented hearing sensitivity within normal limits, bilaterally. The examiner concluded that the March 1963 separation medical examination was the most accurate indication of hearing acuity during that time frame. Therefore, he concluded that it was less likely than not that the veteran's current hearing loss and tinnitus were caused by or the result of military-related acoustic trauma. Applicable Law 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, 1131. 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). Service connection for certain diseases, such as an organic disease of the nervous system like sensorineural hearing loss, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 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 such disease during the period of service. 38 C.F.R. § 3.307(a). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis The veteran seeks service connection for bilateral hearing loss and tinnitus, which he argues are the result of acoustic trauma during his period of active service. As an initial matter, the Board finds that the record on appeal corroborates the veteran's contentions of in-service noise exposure. His service personnel records confirm that he served as an aircraft hydraulics repairman and his statements of noise exposure are consistent with such duties. While the veteran now recalls that he never wore hearing protection during service, as discussed above, service medical records contradict his recollections in this regard. Specifically, at an April 1961 hearing examination, the veteran reported that he "always or frequently" wore hearing protection. Despite these inconsistencies, in light of the veteran's military occupational speciality, the Board finds that it is logical to assume that the veteran was exposed to noise in service. As noted, however, that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In this case, while the veteran's service medical records document a temporary right ear hearing loss in April 1961, at his March 1963 military discharge medical examination, audiological testing showed that the veteran's hearing acuity was within normal limits, bilaterally. Moreover, the Board notes that the record on appeal is negative for medical evidence of a hearing loss disability or tinnitus for decades after service separation. In fact, the first clinical evidence of hearing loss of record is not until July 2004, approximately 31 years after service, when the VA medical examination was conducted. Based on the evidence set forth above, the Board finds that a chronic hearing loss disability was not present in service or within the post-service year. The Board has considered the provisions of 38 C.F.R. § 3.303(b), in light of the veteran's recent claims that his hearing loss and tinnitus began during service. In Savage v. Gober, 10 Vet. App. 488 (1997), it was noted that while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment may bear upon the credibility of the evidence of continuity. As set forth above, the record here contains a span of approximately 31 years without any clinical evidence to support his recent assertions of a continuity of symptomatology. The fact that the contemporaneous records do not provide subjective or objective evidence that supports any recent contention that the veteran experienced continuous hearing loss and tinnitus since service is highly probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Moreover, the Board notes that although the veteran now recalls that his hearing loss and tinnitus began during service, contemporaneous records do not support his recollections. Specifically, the Board notes that at his March 1963 military discharge medical examination, the veteran specifically denied ear trouble. Additionally, audiological testing showed that his hearing acuity was within normal limits. While the Board has considered the veteran's contentions that his hearing loss and tinnitus began during service, it finds that the contemporaneous records are entitled to more probative weight than the recollections of the veteran of events which occurred decades previously. Although the most probative evidence shows that a chronic hearing loss disability or tinnitus was not present during service, the Board notes that even if a veteran does not have hearing loss during the time of active duty, such does not prohibit service connection. Hensley, 5 Vet. App. at 159-60. Rather, service connection may still be established if a veteran currently satisfies the criteria of 38 C.F.R. § 3.385, and the evidence links current hearing loss with service. Id. at 158. See also 38 C.F.R. § 3.303(d). Thus, the Board has carefully reviewed the record for evidence showing that the veteran's current hearing loss and tinnitus, first objectively shown decades after service, are the result of acoustic trauma he sustained during his active service. In that regard, the Board notes that in July 2004, a VA medical examiner, after examining the veteran and reviewing his claims folder, concluded that it is not as least as likely as not that the veteran's current high frequency sensorineural hearing loss and tinnitus are related to his military service. In an August 2005 opinion, the audiologist reaffirmed his conclusions. The Board finds that the July 2004 and August 2005 VA medical opinions are persuasive and assigns them great probative weight. The unequivocal opinions were rendered by an audiologist who clearly has the expertise to opine on the matter at issue in this case. In addition, he addressed the veteran's contentions, gave a considered rationale for his opinion, and based such opinion on a review of the veteran's entire claims folder, including all of his service medical records. On the other hand, the record contains a December 2004 medical opinion from a private audiologist to the effect that the veteran's current hearing loss and tinnitus were due to in-service noise exposure. In reaching her opinion, the audiologist indicated that her conclusion was based on the April 1961 audiogram showing a right ear hearing loss. However, she apparently did not have access to the veteran's entire claims folder, as there is no mention of the March 1963 audiogram showing normal hearing acuity, bilaterally. In addition, the audiologist noted that her conclusion was based in part on the veteran's contention that he did not wear hearing protection during service. As discussed above, however, service medical records note that the veteran reported that he always or frequently wore hearing protection. In determining the probative weight to be assigned to these medical opinions, the Board must consider factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In that regard, the Board notes that both individuals who offered opinions in this case are medical professionals who are clearly competent to comment on the etiology of the veteran's hearing loss and tinnitus. Both provided a rationale for their opinions. After further consideration, however, the Board concludes the probative weight of the VA medical opinions is greater than the private medical opinion submitted by the veteran. As discussed, the VA medical opinions were based on a review of the veteran's entire claims folder, including the March 1963 military discharge audiogram. This fact alone significantly increases its probative value. See e.g. Swann v. Brown, 5 Vet. App. 229 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by the evidence). The Board has also considered the veteran's own statements to the effect that his hearing loss and tinnitus were incurred in service as a result of exposure to acoustic trauma in the course of his duties as an aircraft mechanic. The Board recognizes the veteran's sincere belief that his hearing loss and tinnitus are related to his military service, rather than his 42-year history as a mechanic for a commercial airline. Nevertheless, the veteran has not been shown to have the professional expertise necessary to provide a medical opinion as to the causal relationship between his current hearing loss and tinnitus and his military service. For these reasons, his opinion is not probative. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied 119 S. Ct. 404 (1998); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In summary, the Board finds that the most probative evidence shows that a chronic hearing loss disability and tinnitus were not present during service or for many years thereafter and that the veteran's current hearing loss and tinnitus are not causally related to his active service or any incident therein, including noise exposure. Again, the Board has considered the veteran's recent contentions of continuous hearing loss since service. However, there is a years-long evidentiary gap in this case between the veteran's military service and the earliest medical evidence of a complaint of hearing loss and tinnitus. In addition to the July 2004 and August 2005 VA medical opinions which constitutes affirmative evidence against the claim for service connection, the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that hearing loss and tinnitus are the result of acoustic trauma injuries sustained in service which in turn resulted in chronic disability or persistent symptoms thereafter. 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) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the clinical findings of normal hearing acuity at service separation, plus the lack of any objective evidence of hearing loss or tinnitus between the veteran's military service and the evidence showing hearing loss in 2004 is itself evidence which tends to show that such conditions did not have their onset in service or for many years thereafter and is not the result of acoustic trauma sustained in service. 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 disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In this case, the Board has considered the absence of any medical evidence of hearing loss and tinnitus in service and for approximately 31 years after service, as well as the opinions of the VA examiner who found the absence of such evidence significant, and the Board concludes that the preponderance of the evidence in this case is against the claim of service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs