Citation Nr: 0811523 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-31 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran had active service from July 1962 to December 1962 and from August 1963 to July 1967. The veteran served in Vietnam, and he was awarded the Combat Infantryman Badge related to that service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The veteran's tinnitus had its onset in service. 2. There is no evidence of chronic hearing loss in active service, nor is there competent evidence of a hearing loss disability within the first post-service year; the preponderance of the evidence is against finding a causal relationship between the veteran's service or any incident of service and his current hearing loss disability. CONCLUSIONS OF LAW 1. Service connection for tinnitus is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. Bilateral hearing loss was not incurred in or aggravated by active service, nor may sensorineural hearing loss be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA duty to notify and assist 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 for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. See 38 C.F.R. § 3.159. These notice requirements apply to all five elements of a service connection claim: veteran status; existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of any award of benefits. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In this case, with a letter dated in September 2004, which was prior to the adjudication of the veteran's claims, the RO provided an enclosure notifying him of what the evidence must show to support a service connection claim. The enclosure stated that the evidence must show three things, (1) an injury in service, a disease that began or was made worse in service, or an event in service that caused an injury or disease; (2) a current physical or mental disability; and (3) a relationship between this disability and an injury, disease or event in service. The RO explained that medical records or medical opinions are required to establish this relationship but that in certain circumstances the cause of a disability was presumed for veterans who had certain diseases. In the body of the September 2004 letter to the veteran, the RO requested that the veteran submit or identify medical records related to his claims. The also explained that evidence that would help VA make its decision included dates and location of medical treatment in service, statements of persons who knew him in service and know of disability he had while on active duty, records and statements from service medical personnel, employment physical examinations, post-service medial records, pharmacy prescription records, and insurance examination reports. The RO requested that the veteran send any medical reports he had. In its September 2004 letter, the RO further explained VA's responsibility for obtaining any evidence considered to be in the possession of the federal government such as VA medical records or military hospital records and, in addition, notified the veteran that on his behalf, VA would make reasonable efforts to obtain private medical records for which he provided release authorization. The RO notified the veteran that it was requesting his service medical records from the service department and at the same time requested that he submit any military medical records already in his possession. The RO also emphasized to the veteran that it was his responsibility to make sure VA received al requested records not in the possession of a federal department or agency. In addition, the RO made a specific request to the veteran that he send any evidence in his possession that pertained to his claims. In view of the foregoing, the Board finds that the veteran was effectively informed to submit all relevant evidence in his possession and that he received notice of the evidence needed to substantiate his service connection claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005); see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the Dingess requirements, VA provided the veteran with notice of what type of information and evidence was needed to substantiate his service connection claims but did not provide notice of the type of evidence necessary to establish a disability rating or effective date. Despite the inadequate notice provided to the veteran on the latter elements, the Board finds no prejudice to him in proceeding with the issuance of this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where Board addresses question not addressed by agency of original jurisdiction, Board must consider whether veteran has been prejudiced thereby). In this case, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, rendering moot any question as to disability rating or effective date as to that issue, and the RO will address the matter of effective date and disability rating in implementing the Board's decision granting service connection for tinnitus. As to the duty to assist, the RO obtained the veteran's service medical records and available VA medical records. In addition, the veteran has been provided a VA audiology examination. The veteran has stated that he has received all of his medical treatment for his claimed conditions from VA and that he has no military or private medical records in his possession. There is no indication from the veteran that he has or knows of any additional evidence that pertains to his claims. Based on the foregoing, the Board concludes no further assistance to the veteran with the development of evidence is required and that there has been no notice delay or deficiency resulting in prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Background and analysis The veteran is seeking service connection for bilateral hearing loss and tinnitus. He states that he was exposed to high levels of noise during service with the firing of small arms and demolition work and that he has had ringing in his ears ever since he was in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Although 38 U.S.C.A. § 1154 does not establish service connection for a particular disability of a combat veteran, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (noting that § 1154(b) "does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected", but "considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service."). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that lay persons are not competent to opine as to medical etiology or render medical opinions. See Barr, at 307; see also Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494-95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the veteran served in Vietnam and was a parachute-qualified engineer staff sergeant with the 173rd Engineering Company of the 173rd Airborne Brigade, and he received the Combat Infantryman Badge in conjunction with his Vietnam service. He has reported he carried explosives and was a demolition person responsible for building and blowing up tunnels as well as clearing areas for helicopter pads. His service medical records do not document tinnitus. When he filed his service connection claim in August 2004, the veteran stated he was exposed to high levels of noise during service with the firing of small arms and demolition work. He said he had had ringing in his ears ever since service. In conjunction with his claim, the veteran underwent a VA audiology examination in December 2004. In his report, the audiologist stated the veteran reported unprotected exposure to hazardous military noise (combat engineer, demolitions) as well as civilian noise, stating he worked on a General Motors assembly line, but never wore hearing protection. The audiologist said the veteran reported he experienced mild, bilateral, constant tonal tinnitus of unknown onset and etiology. In the final paragraph of the report, the audiologist stated that he reviewed the veteran's claims file and noted an audio exam was not completed as part of the veteran's discharge physical. The audiologist noted that the veteran did not mark any box regarding his hearing health, which the examiner said indicated that the veteran had no concerns about his hearing at that time. The audiologist stated that the veteran does not associate his tinnitus with the military. In the next sentence, the audiologist said that in conclusion it is less likely than not that the veteran's tinnitus is service connected. In his substantive appeal, the veteran asserted that he told the audiologist he did not know if his tinnitus was due to his military service but that he had noted the noise in his ears ever since he was in service. On review of this evidence, the Board finds that the ringing and noise in his ears the veteran has reported are susceptible to lay observation and have been effectively diagnosed as tinnitus by the audiologist who conducted the December 2004 examination. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (ringing in the ears is capable of lay observation). Although the veteran at that time apparently reported that he did not know when his tinnitus started or what caused it, the Board finds credible the veteran's statement that that although he told the examiner that he did not know whether his tinnitus was due to his military service, he did tell the examiner that for as long as he could remember he had noted noise in his ears since service. The veteran is certainly competent to report the continuation of noise and ringing in his ears over the years since service. Resolving all doubt in favor of the veteran, the Board finds that the veteran's tinnitus started in service and warrants service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The remaining issue on appeal is service connection for bilateral hearing loss. Relative to a claim for service connection for 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 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The regulation defines hearing loss disability for VA compensation purposes. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The results of the December 2004 VA audiology examination establish that the veteran has current bilateral hearing loss disability. Specifically, on examination, pure tone thresholds in the right ear were 20, 30, 30, 30, and 40 db at 500, 1000, 2000, 3000, and 4000 Hz, respectively, and pure tone thresholds in the left ear were 30, 35, 35, 30, and 40 db at the same respective frequencies. Maryland CNC word recognition scores were 98 percent for each ear. The diagnosis was mild to moderate sensorineural hearing loss in both ears. The Board notes that generally all audiometric findings reported by the military prior to November 1, 1967, were reported in American Standards Association (ASA) units. For purposes of consistency in this opinion, ASA units have been converted to the currently used International Standards Organization (ISO)-American National Standards Institute (ANSI) units. At his August 1963 enlistment examination for his second period service, in ISO-ANSI units, the pure tone thresholds in each ear were 25, 20, 20, 20, and 15 db at 500, 1000, 2000, 3000, and 4000 Hz, respectively. Chronological service medical records include no complaint, finding, or diagnosis concerning the veteran's hearing or his ears. There is no indication that the veteran's hearing was tested at his separation examination in July 1967. At that time, he answered no to the question of whether he had ever had or now had hearing loss. As noted, the December 2004 VA audiology examination establishes that the veteran has bilateral sensorineural hearing loss that meets the criteria for a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The question that the Board must decide is whether the veteran's current hearing loss disability is attributable to service. Although the record shows that at a VA clinic visit in October 2004, when questioned about hearing, the veteran said he had some problems in both ears, there is no other post- service medical evidence of record pertaining evaluation or treatment of hearing loss or tinnitus earlier than the December 2004 VA audiology examination. There is, therefore, no medical evidence that shows hearing loss disability to a degree of 10 percent or within the first post-service year, precluding the grant of service connection for bilateral hearing loss on a presumptive basis. The veteran has argued that the provisions of 38 U.S.C. § 1154(b) should be applied to grant service connection for hearing loss on a direct basis. As distinguished from tinnitus, which the veteran reports he has had since service, the veteran has not said he had hearing loss in service, rather he has argued that noise exposure in combat caused his current hearing loss disability. The Board acknowledges that the veteran served in combat and accepts as competent and credible his assertions that he was exposed to noise related to combat, including his duties handling explosives. Although the record establishes current bilateral hearing loss disability, as shown at the December 2004 VA audiology examination, and the veteran's statements as a combat veteran establish noise exposure in service, this is not enough to establish service connection for the veteran's hearing loss. The veteran has not contended, nor does the evidence show, that he has had chronic hearing loss since service or that he received evaluation or treatment for hearing loss for decades following service. The absence of any treatment records or diagnosis relating to hearing loss in service or for many years thereafter is significant evidence against the claim. The Federal Circuit has determined that a significant lapse in time between service and evidence of post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, there is no competent evidence that suggests a causal relationship between the veteran's current sensorineural hearing loss and any incident of service, including noise exposure in service. To the extent that the veteran contends there is a causal relationship between his hearing loss and noise exposure in service, the Board notes that the record does not show, nor does the veteran contend, that he has specialized education, training, or experience that would qualify him to provide medical opinions. It is now well established that a lay person such as the veteran is not competent to opine on medical matters such as diagnoses or etiology of medical disorders, and this veteran's opinion that his current sensorineural hearing loss disability had its onset in service or is causally related to any incident of service (which is a medical matter) is therefore entitled to no weight of probative value. See, e.g., Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The only medical evidence as to etiology of the veteran's sensorineural hearing loss is squarely against the claim. The VA audiologist who examined the veteran in December 2004 reviewed the entire record, including the veteran's service medical records. He considered the history reported by the veteran of unprotected noise exposure in service and his history of unprotected noise exposure working on a General Motors assembly line after service. In addition, he noted that during his interview, the veteran reported he first noticed hearing loss 15 years ago. The audiologist said this was too long after service to have been caused by the military. The audiologist also noted the veteran had worked around a great deal of civilian noise and concluded it is less likely than not that the veteran's hearing loss is service connected. In summary, the Board finds that there is no evidence of hearing loss in service and no competent evidence of sensorineural hearing loss to a compensable degree within one year following his discharge from service. Further, the greater weight of the evidence is against finding a nexus between the veteran's current bilateral hearing loss disability and service or any incident of service, including exposure to noise during combat. The Board therefore concludes that the preponderance of the evidence is against the claim, and service connection for a bilateral hearing loss disability is not warranted on a direct or presumptive basis. As the preponderance of the evidence is against the hearing loss service connection claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); also see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs