Citation Nr: 0811223 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-33 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had military service from January 1946 to November 1947. This matter comes to the Board of Veterans' Appeals (Board) from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied entitlement to service connection for bilateral hearing loss and tinnitus. In his September 2005 substantive appeal, the veteran requested a video-conference hearing at a local VA office before a Member of the Board. In February 2008, the appellant was sent a letter notifying him that he was scheduled to appear for a Board hearing in March 2008. He did not report for this hearing and has provided no explanation for his failure to report. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2007). FINDINGS OF FACT 1. Bilateral hearing loss was not shown in service or for many years thereafter; and the preponderance of the evidence is against a finding of a relationship between the current bilateral hearing loss and service. 2. Tinnitus was not diagnosed in service or for many years thereafter; and the preponderance of the evidence is against a finding of a relationship between the current tinnitus and service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service, directly or presumptively. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA 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). 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. The notice requirements apply to all of 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in February 2005. No new disability rating or effective date for award of benefits will be assigned as the claims for service connection are denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Notwithstanding this, the RO provided notice pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006) in March 2006, subsequent to the initial adjudication in June 2005. While the March 2006 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a July 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. VA has obtained service medical records, assisted the veteran in obtaining evidence, including VA medical treatment records, and afforded the veteran audiological examinations and obtained opinions regarding the existence and etiology of the claimed disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The veteran seeks service connection for bilateral hearing loss and tinnitus. He claims that he is presently suffering from hearing loss and tinnitus as a result of noise exposure during service, particularly while engaging in shooting practice without any protective gear during basic training and from working next to an adjoining air base where bomber and fighter planes landed, again, without any protective gear. He notes that he had a continuous subtle ringing in his ears during the time he was stationed near the air base. At a hearing at the RO in December 2006, the veteran testified that within twelve months of his separation from service he had trouble distinguishing conversation if there was background noise or if there was just a low conversation. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) 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); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Where certain chronic diseases, including sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of separation from service, such disease shall be considered to have been incurred or aggravated by such service, notwithstanding there is no evidence of that disease during service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows a present bilateral hearing loss and tinnitus disability. A May 2005 VA audiological examination report notes that the veteran is suffering from mild to profound sensorineural loss of hearing sensitivity from 500- 4000 hertz in both ears, and medium loud tinnitus with a very high pitch, which the examiner found to be supported by his current level and type of hearing loss. A June 2007 VA audiological examination report notes that the veteran is suffering from mild to profound bilateral sensorineural hearing loss with very poor word recognition ability, and bilateral, periodic tinnitus. The next issue is whether there is evidence of any in-service incurrence of hearing loss or tinnitus. The service medical records (SMRs) are negative. Indeed, upon entrance in January 1946 his hearing was 15/15 bilaterally on whisper voice testing. SMRs dated in October and November 1947 indicate bilateral hearing of 15/15 on whisper voice testing. Personnel records reflect that the veteran's military service occupation (MOS) was a motor vehicle dispatcher. According to the veteran's statements, during his service he was routinely exposed to noise from airplanes. The veteran is competent to state whether he was exposed to loud noises. Further, the Board finds the veteran's statements to be credible. Therefore, his exposure to acoustic trauma in service is conceded. As the record shows present hearing loss and tinnitus disabilities and exposure to acoustic trauma in service, the determinative issue is whether these are related. The May 2005 VA audiological examination found that it was not at least as likely as not that the veteran's hearing loss and tinnitus disabilities are due to his military service. The VA examiner tested the veteran's hearing, spoke with him about his service, noting his exposure to aircraft noise while in service, and reviewed his claims file. The examiner also noted the veteran's exposure to aircraft noise following service from being a flight instructor and construction noise while working in construction. It was the examiner's opinion that the veteran was exposed to more noise following service then he had in-service. A second VA audiological was conducted in June 2007. Hearing tests were performed, and the examiner reviewed the veteran's claims file. The examiner noted that the veteran's in- service hearing tests showed hearing within normal limits, but concluded that these hearing tests were crude. Comparison of audiometric thresholds to the in-service test results is not possible. The examiner concluded that an opinion regarding the question of the etiology of his hearing loss and tinnitus would be mere speculation and no opinion regarding the etiology of the claimed hearing loss and tinnitus disabilities was given. The first contemporaneous medical evidence of hearing loss of record is in 2005. This is more than 50 years after the one- year presumptive period from discharge from service; thus, service connection is not warranted on a presumptive basis. Moreover, the passage of more than 50 years before any evidence of the disabilities is of record weighs heavily against a finding that such disabilities are related to service on a direct basis. See 38 C.F.R. §§ 3.307, 3.309. See Savage v. Gober, 10 Vet. App. 488 (1997). The negative evidence in this case outweighs the positive. Although the veteran has argued that his current diagnoses of bilateral hearing loss and tinnitus are related to noise exposure in service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Though the veteran's lay assertions and December 2006 testimony have been considered, they do not outweigh the medical evidence of record, notably the May 2005 VA audiological examination, which shows that there is no relation between the veteran's current diagnoses of bilateral hearing loss and tinnitus and noise exposure during service. A competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The preponderance of the evidence is against the claims for bilateral hearing loss and tinnitus service connection; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs