Citation Nr: 0811233	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  06-00 988	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, 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

Robert L. Grant, Associate Counsel


INTRODUCTION

The veteran had active service from November 1972 to February 
1976.

This matter comes before the Board of Veteran's Appeals 
(Board) on appeal from an August 2005 rating decision of the 
Department of Veteran's Affairs (VA) Regional Office (RO) in 
Waco, Texas, that denied the benefits sought on appeal.  


FINDINGS OF FACT

1.  The veteran is not shown to have bilateral hearing loss.  

2.  The veteran is not shown to have tinnitus.  


CONCLUSION OF LAW

1.  Hearing loss was not incurred in or aggravated by active 
service, nor may it be presumed to have been so incurred.  38 
U.S.C.A. §§ 1101, 1110, 1112, 1113, 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 was not incurred in or aggravated by active 
service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before addressing the merits of the veteran's claim 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).  The notification obligation in this 
case was accomplished by way of a letter from the RO to the 
veteran dated in May 2005.  The RO provided the requisite 
notification regarding the disability evaluation or the 
effective date that could be assigned if service connection 
were granted in April 2006.  See Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).

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 veteran and his representative have been kept informed of 
the RO's actions in this case by way of the Statement of the 
Case, and been informed of the evidence considered, the 
pertinent laws and regulations and a rationale for the 
decision reached in denying the claims.  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, 444 F.3d 1328 (Fed. Cir. 2006).  
Therefore, the Board finds that the duty to notify and duty 
to assist have been satisfied and will proceed to the merits 
of the veteran's appeal.

A review of the veteran's service medical records indicates 
that an audiological examination was conducted at the time of 
the veteran's enlistment in November 1972.  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
X
0
LEFT
15
5
0
X
10

An additional audiogram was conducted in January 1973,  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
5
0
LEFT
15
5
5
10
10


April 1975,




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
5
0
LEFT
15
5
5
10
10

and at discharge in January 1976.  





HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
10
15
LEFT
20
5
5
10
10

It is noted that at the time of the veteran's discharge in 
January 1976, the separation examination indicated a history 
of hearing loss.  Specifically, the record states "Hearing 
loss refers to one episode of some hearing loss noted on 
audiogram in past; audiogram since 1972, including this exam 
within normal limits."  

The record currently before the Board contains no additional 
medical records.  In May 2005 the veteran submitted a 
statement that he had no additional information or evidence 
to submit.  

The Board recognizes that the veteran has not been provided a 
VA examination in this matter.  Under McLendon v. Nicholson, 
20 Vet. App. 79 (2006), in disability compensation (service 
connection) claims, the VA must provide a VA medical 
examination when there is (1) competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability, and (2) evidence establishing that an event, 
injury, or disease occurred in service or establishing 
certain diseases manifesting during an applicable presumptive 
period for which the claimant qualifies, and (3) an 
indication that the disability or persistent or recurrent 
symptoms of a disability may be associated with the veteran's 
service or with another service-connected disability, but (4) 
insufficient competent medical evidence on file for the VA to 
make a decision on the claim. 

Based upon a review of the above, the Board finds that there 
is no competent medical evidence which demonstrates that the 
veteran has a current disability.  The record currently 
contains no medical record between the veteran's separation 
in 1976 and the date his claim was filed twenty nine years 
later in 2005, nor has the veteran identified any medical 
record which would demonstrate hearing loss or tinnitus 
either during or after active service.  As such, the Board 
finds that a VA medical examination is not warranted in this 
matter and will proceed to the merits of the veteran's claim.  

Applicable law provides that service connection will be 
granted if it is shown that a veteran suffers from a 
disability resulting from an injury suffered or a disease 
contracted in the 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(a).

Service connection may also be granted for certain chronic 
diseases, such as hearing loss, when such disease is 
manifested to a compensable degree within one year of 
separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 
C.F.R. § 3.307, 3.309.  

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).

Generally, to prove service connection, the record must 
contain:  (1) Medical evidence of a current disability, (2) 
medical evidence, or in certain circumstances, lay testimony, 
of an in-service incurrence or aggravation of an injury or 
disease, and (3) medical evidence of a nexus or a 
relationship between a current disability and the in-service 
disease or injury.  Pond v. West, 12 Vet.  App. 341 (1999); 
Caluza v. Brown, 7 Vet.  App. 498 (1995).  

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 pure tone threshold 
hearing levels (in decibels) over a range of frequencies (in 
hertz).  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.

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.

In addition, if a veteran served continuously for ninety (90) 
or more days during a period of war or after December 31, 
1946, and if a disease of the nervous system such as 
sensorineural hearing loss became manifest to a degree of 10 
percent or more within one year from the date of the 
veteran's termination of such service, that condition would 
be presumed to have been incurred in service, even though 
there is no evidence of such disease during the period of 
service.  Such a presumption would be rebuttable, however, by 
affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Based upon a review of the above, the Board finds that the 
evidence in this matter does not support a finding of hearing 
loss or tinnitus.  Specifically, the veteran underwent four 
audiological examinations during service.  At no time during 
any of those examinations did the veteran display impaired 
hearing which would be considered a disability pursuant to 38 
C.F.R. § 3.385.  Additionally, there is no evidence before 
the Board that the veteran has a current diagnosis or 
disability in the form of hearing loss of tinnitus, or that 
the veteran displayed hearing loss within one year of 
separation from service.  

The Board has also considered the veteran's own assertions.  
Although the veteran is competent to testify as to his in-
service experiences and symptoms, where the determinative 
issue involves a question of medical diagnosis or causation, 
only individuals possessing specialized medical training and 
knowledge are competent to render such an opinion.  The 
evidence does not reflect that the veteran possesses medical 
knowledge which would render their opinion as to etiology and 
a medical diagnosis competent.  See Bostain v. West, 11 Vet. 
App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 
186 (1997).  Thus, any lay personal opinion that the 
disability at issue began in service or that it is otherwise 
related to service is not a sufficient basis for awarding 
service connection.

As such, absent evidence of current disability in the form of 
hearing loss or tinnitus, that was incurred in, or aggravated 
by, active service, a finding of service connection is not 
warranted.  


ORDER

Service connection for hearing loss is denied.  

Service connection for tinnitus is denied.  



____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs