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