Citation Nr: 0811508 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-40 122 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for claimed bilateral hearing loss. 2. Entitlement to service connection for claimed tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from May 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the RO. In his December 2005 Substantive Appeal, the veteran requested the opportunity to testify at a hearing held before a Veterans Law Judge at the RO. In February 2007, the veteran withdrew his request for a hearing and, since that time, has not requested the opportunity to testify at another Board hearing. Thus, the Board finds that the veteran's request to testify at a Board hearing has been withdrawn. See 38 C.F.R. § 20.704. FINDINGS OF FACT 1. The veteran currently is not shown to have a right ear hearing disability for VA compensation purposes. 2. The currently demonstrated left ear hearing loss and tinnitus are shown as likely as not to be due to documented noise exposure during the veteran's active service, that included combat with enemy while serving in the Republic of Vietnam. CONCLUSIONS OF LAW 1. The claim of service connection for a right ear hearing loss must be denied by operation of law. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). 2. By extending the benefit of the doubt to the veteran, his disability manifested by left ear hearing loss and tinnitus is due to disease or injury that was incurred in his active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. By way of letters dated in July 2004 and March 2006, the veteran was furnished notice of the type of evidence needed in order to substantiate the claims, including notice that a disability rating and effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran was also generally informed that he should send to VA evidence in his possession that pertains to the claims and advised of the basic law and regulations governing the claims, the cumulative information and evidence previously provided to VA (or obtained by VA on the veteran's behalf), and provided the basis for the decisions regarding the claims. The veteran was provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claims, and he was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on his behalf. For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). The Board also finds that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file consists of the veteran's service treatment records, post-service treatment records and reports, a VA examination, and statements submitted by the veteran and his representative in support of the claims. Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the veteran's claims and that, under the circumstances of this case, VA has satisfied its duty to assist the veteran. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Service connection for hearing loss and tinnitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Here, the veteran seeks compensation benefits for a hearing loss and tinnitus as due to his exposure to acoustic trauma during combat in the Republic of Vietnam. 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, 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 order to determine whether the veteran has hearing loss and tinnitus, and if so whether such conditions are the result of his service, the veteran was afforded a VA examination in July 2005. The VA examiner indicated that the veteran's claims file had been reviewed in connection with the examination. The examiner noted the medical history, to include a left ear infection in 1990. Since that time, the veteran reported having chronic ear infections and cerumen build-up, mostly in the left ear. He was unable to get his ears wet because he was prone to foul-smelling drainage and pus. The VA examiner also noted the veteran's reported history of noise exposure in service, to include artillery fire. The service entrance and separation examinations were noted to reveal normal hearing upon entry and exit from service. The veteran denied occupational or recreational noise exposure after service. Upon examination, audiological testing revealed maximum pure tone threshold levels, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 20 35 LEFT 25 25 35 55 60 Speech audiometry testing revealed speech recognition ability of 98% in the right ear and 92% in the left ear. The veteran was diagnosed with left ear hearing loss and tinnitus, but was noted not to have hearing loss for VA purposes in the right ear. The veteran was noted to have a senorineural hearing loss in each ear. With respect to the veteran's left ear hearing loss, the examiner stated that an air/bone gap was present indicating that middle ear pathology was present (possibly from the cerumen management and/or the veteran's admitted middle ear infections). It appeared to the VA examiner that the hearing loss present today was more attributable to middle ear problems from the veteran's ear infection history that began in 1990 and not to military noise exposure. Therefore, it was the examiner's opinion that it was not at least as likely as not that hearing loss in the left ear was related to military service. With respect to the claimed tinnitus, the examiner stated that the veteran reported having had transient tinnitus in the 1970's with no documentation of the complaints of tinnitus in the file. It was infrequent, mild and of short duration. The tinnitus only became constant, worse and louder following an ear infection in 1990 as reported by the veteran, so it was the VA examiner's opinion that it was not as least as likely as not that tinnitus was related to military service, but attributable to his history of ear infections from 1990 to the present. Based on the foregoing, the Board finds that the evidence in this case to be in relative equipoise in that the veteran's current left ear hearing loss and tinnitus are shown as likely as not to be related to the exposure to loud noises while service in the Republic of Vietnam when he had documented combat with enemy. As noted, in order for impaired hearing to be considered to be a disability, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz must be 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz must be 26 decibels or greater; or the speech recognition scores using the Maryland CNC Test must be less than 94 percent. 38 C.F.R. § 3.385. Thus, the veteran's right ear sensorineural hearing loss does not meet these thresholds standards for the payment of VA compensation at this time. With respect to the documented left ear hearing loss and tinnitus, the Board finds the VA examiner's opinion to be of limited probative value in that it did not take into consideration the nature and circumstances of the veteran's active service. In addition, in diagnosing a sensorineural hearing loss in the left ear and tinnitus, the examiner did not account for the veteran's reliable account of having ear trouble and tinnitus in service. Instead, the VA examiner focused solely on the veteran's post-service history of ear infections without meaningfully addressing whether these reflected some form of superimposed pathology. The VA examiner also failed to say whether the documented episode of otitis media in January 1970 during service played a role in the development of any current disability. The Board notes that, due to his documented combat service as reflected by the receipt of the Combat Action Ribbon, the veteran must be afforded significant deference as to his statements of exposure to acoustic trauma and the nature of his manifestations during service. In this regard, the veteran has reliably reported having had tinnitus and hearing problems since service. In this case, in the opinion of the Board, the overall evidentiary record is evenly balanced in providing a basis for granting service connection for the current left ear sensorineural hearing disability and tinnitus by extending the benefit of the doubt to the veteran. ORDER The claim of service connection for a right ear hearing loss must be denied under the law. Service connection for a left ear hearing disability is granted. Service connection for tinnitus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs