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