Citation Nr: 0811393 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-25 609 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The veteran served on active duty from July 1987 to July 1991. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Subsequently, the veteran relocated and the case was transferred to the RO in Denver, Colorado. FINDINGS OF FACT 1. Bilateral hearing loss was not manifested during service or for many years thereafter, and is not otherwise related to such service. 2. Tinnitus was not manifested during service or for many years thereafter, and is not otherwise related to such service. CONCLUSIONS OF LAW 1. Bilateral 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, 1131, 1137, 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 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, 1131, 1137, 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). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). 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 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, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with pre-adjudication notice by letter dated in September 2004. The notification substantially complied with the requirements of 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 possession that pertains to the claims. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has obtained service medical records (SMRs), assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claim 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. Background and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). Additionally, service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§3.307(a), 3.309(a) (2007). Hearing Loss For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§1110 and 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The Board has reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail all of the evidence submitted by the veteran or on his behalf. Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim addressed herein. The veteran contends that his hearing loss is the result of his military occupation as an aviation machinist's mate. His DD-214 is not in the claim file, but the record shows he was entered into a hearing conservation program, which indicates that he worked in an occupation in which he was exposed to noise. The veteran's SMRs show that an audiological evaluation was performed at his induction physical in July 1987, in which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 5 LEFT 15 10 5 10 5 Speech recognition ability was not noted. The SMRs show that the veteran entered a hearing conservation program in which he underwent annual audiological evaluations. A test conducted in July 1987, served as the baseline. On this evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 -10 5 -10 LEFT 5 5 0 10 0 An audiological exam conducted in June 1988 showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 0 LEFT 15 5 0 10 5 An audiological exam was performed in August 1989, in which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 15 20 LEFT 15 5 5 20 10 These results show that the veteran's right ear hearing had worsened by 20 decibels at 2000 Hz and 30 decibels at 4000 Hz since the baseline test. For purposes of the hearing conservation program, a change of 20 decibels or more was regarded as "significant" and required follow-up evaluations. The veteran was retested after 15 hours without exposure to noise, when pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 15 10 LEFT 10 10 0 20 5 Ten days later, the veteran underwent another audiological evaluation after 40 hours without exposure to noise, in which his pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 10 LEFT 10 10 -5 20 10 In December 1989, the veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 5 5 15 5 LEFT 15 10 10 25 10 In October 1990, the veteran's pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 10 5 LEFT 25 20 15 30 15 The veteran's separation physical, including an audiological exam, was conducted in June 1991. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 0 LEFT 10 10 5 15 5 The veteran did not report hearing loss at that time. Two subsequent audiological examinations were performed in June 1991. In the first evaluation, the veteran's pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 0 LEFT 10 5 0 15 0 The following day, the veteran's hearing was evaluated after 15 hours without exposure to noise. His pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 0 LEFT 10 10 5 15 5 Speech recognition ability was not noted on any of the audiological tests. SMRs show that the veteran underwent a physical examination in May 1992, while in reserve status. No audiological tests were performed, but the veteran reported for the first time that he had experienced hearing loss. The examiner's note reads, "Had some hearing loss while working as aviation machinists mate. Was re-evaluated before release and found fit for duty - 1990 - NAS Cecil Field, Jacksonville." From this statement, it appears the veteran was describing the August 1989 incident when he was required to retest after 15 and 40 hours without noise exposure. This medical evidence shows that, while the veteran's hearing fluctuated during service, it was always found to be within normal limits, and it was normal when he separated from service. Hearing loss, considered an organic disease of the nervous system, can be presumed to have been incurred in service if it manifests to a compensable degree within one year of separation. As noted above, the veteran's report of hearing loss, although made within a year of his separation, appears to refer to an earlier incident. It was not a claim of contemporaneous hearing loss. Furthermore, there was no clinical evidence of hearing loss up to that time. Thus, there is no evidence that the veteran developed permanent hearing loss in service or within one year of separation. Service connection can be established for hearing loss that first met the regulation's requirements after service if all of the evidence indicates that a current disability is the result of an injury or disease incurred in service. Hensley, 5 Vet. App. at 159. After filing his claim, the veteran underwent a VA audiological evaluation in October 2004, in which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 35 45 40 LEFT 30 35 30 40 45 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 in the left ear. The audiologist reviewed the veteran's claim file and noted his history of noise exposure in service. The examiner concluded that the veteran's hearing loss was not likely related to his military service. This test clearly shows that the veteran has a current hearing disability as defined by VA regulations. 38 U.S.C.A. § 3.385. However, it is the only test in the record that shows a hearing disability, and it was conducted 13 years after the veteran's separation from service. There is no evidence showing a chronic condition since service. Furthermore, the only medical opinion of record as to the etiology of the hearing loss expressly rejects a causal relationship between the hearing disability and the veteran's time in service. Without a medical opinion linking the veteran's current disability to his service, there is no basis for granting service connection. Tinnitus The evidence of record does not indicate that the veteran reported tinnitus at any time during or after his active service, until he filed his VA claim in September 2004. The only medical report noting tinnitus is from his VA examination in October 2004, in which the examiner concluded that his tinnitus is not likely related to service. As there is no medical opinion linking the veteran's current tinnitus to military service, there is no basis for granting service connection. The Board concludes service connection for bilateral hearing loss and tinnitus must be denied. As reflected by the discussion above, the preponderance of the evidence is against the veteran's claim. As such, the benefit-of-the- doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs