Citation Nr: 0811000 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-19 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran served on active duty from August 1943 to July 1946. This matter comes to the Board of Veterans' Appeals (Board) from an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in May 2005, a statement of the case was issued in May 2005, and a substantive appeal was received in June 2005. The veteran's case is currently advanced on the docket, pursuant to his motion and the requirements of 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. Hearing loss disability was not manifested during service or for many years after service, nor is hearing loss disability otherwise causally or etiologically related to service. 2. Tinnitus disability was not manifested during service or for many years after service, nor is tinnitus disability otherwise causally or etiologically related to service. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by service, nor may sensorineural hearing loss, as an organic disease of the nervous system, be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2007). 2. Tinnitus disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notification obligation in this case was accomplished by way of a letter from the RO to the veteran dated in February 2005. While this notice does not provide any information concerning the evaluation or the effective date that could be assigned should service connection be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since this decision affirms the RO's denial of service connection, the veteran is not prejudiced by the failure to provide him that further information. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The evidence of record contains the some of the veteran's service medical records, post-service VA medical records, and post-service private medical records. The evidence of record also contains a report of VA examination performed in March 2005. The March 2005 examination report obtained is thorough and contains sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. For all the foregoing reasons, the Board concludes that VA's duties to the veteran have been fulfilled with respect to the issues on appeal. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from injury suffered or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. § 1110, 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as 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 U.S.C.A. §§ 1101, 1112, 1133; 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. The veteran has claimed entitlement to hearing loss and tinnitus due to exposure to noise from artillery during active service. 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, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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. A service Report of Physical Examination for separation purposes dated in July 1946 reflects that the veteran scored 15/15 on the whispered voice test for both ears. His ears, nose, and throat were clinically evaluated as normal. No additional service medical records were available for review. Efforts to obtain service medical records from all potential sources were unsuccessful. The National Personnel Records Center (NPRC), St. Louis, Missouri, in response to VA requests, reported the records may have been destroyed in a fire at the Records Center in 1973. NPRC could not confirm the existence of such records; only the fact that if they had been stored at the Records Center, they would have been stored in an area damaged by the fire. VA outpatient treatment records dated in December 2004 reflect that the veteran was assessed with severe to profound sensorineural hearing loss in the right ear and moderate to profound sensorineural hearing loss in the left ear. The veteran underwent a VA examination in March 2005. He reported hearing difficulty in the right ear for over 40 years, and hearing loss in the left ear for over 20 years. He stated his history of noise exposure while in the service included exposure to artillery fire, rifle fire, mortar rounds, and near-by bomb explosions while in combat in World War II. He claimed that, as a civilian, he worked for 30 years driving heavy equipment and running "big saws" without hearing protection. He reported a history of ear infections in the right ear over the previous 10 years. He stated that he could not recall a specific date of onset of tinnitus, however, he has had constant ringing in his ears bilaterally for approximately 10 years. Audiometric testing showed pure tone thresholds, in decibels, as follows, with a right ear average of 95+ decibels and a left ear average of 61 decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 80 95 105+ 105+ 105+ LEFT 40 45 55 65 80 The examiner opined that other factors (i.e. age, noise exposure as a civilian) were the cause of his current hearing loss and tinnitus and it is not likely that current hearing loss or complaint of tinnitus was caused by military acoustic trauma. Private medical records from Central Valley ENT dated in June 2006 reflect a diagnosis of mild impairment in the low and mid frequencies to a severe hearing loss in the high frequencies for the left ear, and a sloping pattern ranging from a moderate loss in the low tones to a severe to profound loss at 2,000 Hertz and above for the right ear. The record also contains an undated record of treatment with H. Lee McLeod, Ph.D., CCC-A. There is no indication that Dr. McLeod reviewed the available documents from the veteran's claims file. Dr. McLeod diagnosed bilateral moderate to profound sensorineural hearing loss with greater hearing loss in the right ear. Dr. McLeod opined that it was as likely as not that hearing loss resulted from exposure while in the military when the veteran experienced high levels of noise exposure during combat. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court has held that the 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." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Board notes that the March 2005 VA examiner reviewed the available documents from the veteran's claims file while there is no indication that Dr. McLeod did so. Furthermore, the Board finds it significant that Dr. McLeod's statement includes no rationale or even recognition of the veteran's post-service noise exposure. The Board therefore finds that the March 2005 VA examination findings are entitled to more weight than the undated findings by Dr. McLeod. Additionally, the Board notes that the lack of any evidence of continuing hearing loss for over 58 years between the period of active duty and the evidence showing hearing loss and tinnitus is itself evidence which tends to show that no hearing loss and tinnitus were incurred as a result of service. Moreover, there is no medical evidence showing that hearing loss manifested itself to a degree of 10 percent or more within one year from the date of separation from active service, and therefore service connection for hearing loss may not be presumed to have had its onset in service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Further, the "absence" of evidence or "negative" evidence of any tinnitus and hearing loss during service in this case is supported by affirmative evidence, consisting of the separation examination report which included normal audiometric testing. Although the veteran has asserted that his hearing loss and tinnitus are due to acoustic trauma in service, the fact remains, however, that there is no record of complaints of hearing loss and tinnitus during service, and he has not provided any medical evidence, whatsoever, showing findings or a diagnosis of hearing loss until December 2004 or tinnitus until he underwent a VA examination in March 2005. Finally, the Board believes it significant that the March 2005 medical examiner opined that the current bilateral hearing loss and tinnitus were not etiologically related to service. The Board finds that this opinion is entitled to more weight than the private opinion since it was based on a review of the file and included recognition of post-service noise exposure. The Board has considered the veteran's own lay statements to the effect that his bilateral hearing loss and tinnitus are causally related to his active service; however, it is noted that the veteran has not been shown to have the medical expertise necessary to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In reaching this determination, the Board is unable to find such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision for the issues adjudicated by this decision. 38 U.S.C.A. § 5107(b). ORDER Service connection for hearing loss is not warranted. Service connection for tinnitus is not warranted. The appeal is denied as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs