Citation Nr: 0811261 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 07-06 277A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from April 1944 to May 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). A hearing was held at the RO before the undersigned Veterans Law Judge in March 2008. FINDINGS OF FACT 1. Chronic hearing loss was not present during service, was not manifest within a year after separation from service, and the preponderance of the evidence shows that the current hearing loss is did not develop as a result of any incident during service, to include exposure to noise. 2. Tinnitus was not present during service and the currently claimed tinnitus did not develop as a result of any incident during service, to include exposure to noise. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Notify and Assist The VA has a duty to provide specific notification to the veteran and assist him with the development of evidnece pursuant to the Veterans Claims Assitance Act (VCAA). The Board finds that the content requirements of a notification letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in February 2006 provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The veteran's duty-to-assist letter was provided before the adjudication of his claims. The letter specifically informed the veteran that he should submit any additional evidence that he had in his possession. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His service medical records and post service treatment records have been obtained. He has had a hearing. He was also afforded a VA medical examination, and an appropriate medical opinion was provided. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claims. Therefore, no further assistance to the veteran with the development of evidence is required. I. Entitlement To Service Connection For Hearing Loss. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. During the hearing held in March 2008, the veteran testified that he was exposed to noise during service in his duties in the Navy. He recounted being aboard a ship during combat, and being exposed to very loud noise due to five inch and 20 and 40 millimeter guns being fired right behind him. He expressed his opinion that this noise exposure caused him to develop hearing loss. The Board finds that the veteran's account of exposure to noise in service is credible. However, after reviewing all of the evidence, the Board finds that the veteran's current hearing was not present until many years after service, and is not etiologically or causally related to active duty service or any incident therein. The veteran's service records do not contain any references to hearing loss. On separation examination in May 1946 the veteran's hearing was found to be 15/15 using the whispered voice test. There is no medical evidence of hearing loss within a year after separation from service. On the contrary, the earliest evidence of hearing loss is from many years after service. For example, a VA treatment record dated in January 2005 reflects that the veteran had hearing loss. The treatment records contain no indication that the hearing loss is related to service. The only medical opinion regarding the etiology of the hearing loss weighs against the claim. The report of a VA audiology examination conducted in July 2006 reflects that the examiner reviewed the claims file and noted that the veteran had performed service as a seaman, including a job as a gunner. The examiner also noted the normal condition of the ears on separation from service. Following audiology testing, the examiner concluded that the military record provided no substantive evidence that hearing loss occurred in the service. The examiner noted that there was no evidence in the record that the veteran acknowledged auditory injuries during the discharge examination when given the opportunity to do so. The veteran has presented no medical evidence whatsoever that supports his lay contention that his current hearing loss is etiologically related to service. The Board has considered the veteran's testimony as to his belief that his hearing loss is related to service; however, the veteran, as a lay person, is not competent to offer a medical diagnosis or to assert medical causation of his disorder. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). For the sake of analyzing the claim, the Board accepts the veteran's testimony that he was exposed to factors such as loud noises. However, to the extent that the veteran's testimony may be interpreted as indicating that he had continuity of symptomatology of hearing loss since service, the Board concludes that the testimony is not credible. In this regard, the Board notes that the veteran's testimony is contradicted by the service records which indicate that he had normal hearing on examination in service. Moreover, any claim of having had hearing loss on an ongoing basis is further contradicted by the complete lack of any medical evidence for many years after service. Indeed, there is no indication that this disability was diagnosed or treated for many years following his separation from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in deciding a service connection claim). The Board concludes that contemporaneous medical records, such as the service records which are silent for complaints of hearing loss and show normal results on testing have significantly higher probative value than testimony presented many years later in support of a claim for monetary benefits. Therefore, the Board finds that although the veteran may have sustained acoustic trauma in service, the preponderance of the evidence shows that chronic hearing loss was not present during service, was not manifest within a year after separation from service, and any current hearing loss is not attributable to any event or injury during service. Accordingly, the Board concludes that hearing loss was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. II. Entitlement To Service Connection For Tinnitus. The veteran's service medical records are negative for any references to tinnitus. On separation from service in June 1946, the ears were found to be normal, and there was no mention of tinnitus. The first evidence of tinnitus is not until many years after separation from service. The VA examination report dated in July 2006 reflects that the veteran's current complaints include that of having tinnitus. Significantly, however, the examiner concluded, in essence, that the cause of the tinnitus was undetermined. The examiner noted that repeated noise exposure over a lifetime contributes to tinnitus, but also noted that a large percentage of the general population complained of tinnitus without any definite loud noise exposure. Although the veteran has given his own opinion that he has tinnitus due to noise exposure during service, the Court has generally held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. The Board further finds that the veteran's account of having had symptoms of tinnitus since service is contradicted by the more probative contemporaneous service medical records which reflect that he never reported any complaints of tinnitus. Therefore, the Board finds that tinnitus was not present during service and the currently claimed tinnitus did not develop as a result of any incident during service, to include exposure to noise. Accordingly, the Board concludes that tinnitus was not incurred in or aggravated by service. ORDER 1. Service connection for hearing loss is denied. 2. Service connection for tinnitus is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs