Citation Nr: 0811563 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 07-12 765 ) DATE ) ) On appeal 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The veteran had active duty service from October 1954 to October 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2006, a statement of the case was issued in February 2007, and a substantive appeal was received in April 2007. The veteran testified at a Board videoconference hearing at the RO in February 2008. A transcript of the hearing is of record. FINDINGS OF FACT 1. Bilateral hearing loss disability is not shown to have manifested during the veteran's active duty or for many years thereafter, nor is bilateral hearing loss disability shown to be otherwise related to such service. 2. Tinnitus is not shown to have manifested during the veteran's active duty service or for many years thereafter, nor is tinnitus shown to be otherwise related to such service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to have incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to have incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In a letter sent in September 2005, the claimant was informed of the information and evidence necessary to warrant entitlement to the benefits sought. Moreover, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board notes that the September 2005 letter was sent to the appellant prior to the February 2006 rating decision giving rise to the current appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet.App. 112 (2004). The Board also notes that the September 2005 letter expressly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. Therefore, the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded. Id. at 488. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate his claims by showing the nature and history of the claimed disabilities, but there has been no timely notice of the types of evidence necessary to establish particular ratings and effective dates for any ratings that may be granted. The Board notes that the RO did furnish the appellant with a letter in January 2008 which directly explained how VA determines disability ratings and effective dates, but this notice was arguably untimely. Despite the untimely notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Board notes that subsequent to the January 2008 Dingess/Hartman notice the veteran has developed his claims by presenting testimony at a February 2008 Board hearing and has expressed no intention to add more evidence to the record; the evidence of record is adequate for a final decision and there is no indication that any useful purpose would be served by delaying appellate review at this time. Additionally, the Board finds below that the preponderance of the evidence is against granting service connection; thus, no rating or effective date will be assigned and questions concerning such assignments are rendered moot. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records, in-service and VA, have been obtained and the veteran has been afforded a VA audiological examination to evaluate the etiology of his hearing loss and tinnitus; a December 2005 VA examination report and a December 2007 addendum are of record. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board notes that the record reflects, in a November 2005 response to a request for information, that the veteran's service medical records are "Fire Related." The November 2005 document explains that "The original SMRs are moldy and brittle and cannot be mailed. Photocopies of these SMRs are being mailed instead." There is no suggestion in the record that the veteran's service medical records are incomplete as a result of the damage. The Board has found that the available copies of the service medical records are substantial and contain documentation of treatment from the veteran's service entrance examination through his separation examination. The Board has found that the entirety of the records remain legible. Thus, there is no indication that the veteran's service medical records have been compromised in any manner which could affect appellate review of this case. No additional pertinent evidence has been identified by the claimant as available and relevant to the issues on appeal. Under these circumstances, no further action is necessary to assist the claimant with this claim. Analysis This case features the veteran's claims of entitlement to service connection for bilateral hearing loss and for tinnitus. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection may also 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). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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. See also Hensley v. Brown, 5 Vet.App. 155 (1993). The Board acknowledges that the lack of any evidence that the veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The record reflects that the veteran's hearing loss currently meets the regulatory thresholds to be considered disabling. The results of the most recent VA audiological examination in December 2005 reveal auditory thresholds of greater than 40 decibels for multiple of the relevant frequencies in each ear. However, the record provides no indication of hearing loss or tinnitus during service or for many years after discharge. The service medical records contain no contemporaneous evidence whatsoever indicating any hearing problems or tinnitus during the veteran's service. The Board acknowledges the veteran's contention, expressed during his February 2008 Board hearing, that he reported to sick bay complaining of hearing difficulty and ringing in his ears during service; unfortunately, there is no suggestion of any complaints or treatment of such symptoms in the service medical records. Significantly, the veteran's September 1958 service separation examination report shows that the veteran's hearing was evaluated using the whispered voice test, and evaluated as "15/15" bilaterally. As this result shows no diminishment in hearing acuity in comparison to the October 1954 entrance examination report, there is no suggestion of decreased hearing acuity of any kind during the course of the veteran's service. At the separation examination, the veteran's ears were noted to be clinically normal with no pertinent abnormalities noted. Defective visual acuity was noted, but there is no suggestion that the veteran complained of any hearing difficulty or tinnitus, and there is otherwise no suggestion of any pathology or symptomatology of hearing loss or tinnitus noted. Thus, the service medical records strongly suggest that neither the veteran, nor medical professionals, believed that any chronic hearing loss or tinnitus had manifested during the veteran's service. Moreover, the record is silent as to any treatment or complaints of hearing loss or tinnitus prior to the veteran's filing of this claim in August 2005, nearly 47 years after separation from service. This lengthy period without any contemporaneous evidence of complaint or treatment weighs against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). The Board acknowledges the veteran's testimony, at his February 2008 Board hearing, that he reported his hearing problems to VA in 1959, and that he obtained a set of hearing aids shortly after his separation from service. The Board addresses its consideration of the veteran's lay testimony later in this decision and, at this time, simply observes that there is no contemporaneous documentation in the record of any suggestion of hearing loss or tinnitus prior to the August 2005 filing of this claim, and this absence of contemporaneous evidence of disability until 47 after service weighs against the claims. The veteran was afforded a VA audiological examination in December 2005 to evaluate the nature and etiology of his current hearing loss and tinnitus. The December 2005 VA examination report reflects a thorough interview and examination of the veteran, confirming current diagnoses of hearing loss and tinnitus. During the interview, the veteran was noted to describe noise exposure from automatic weapons during service; the veteran was also noted to report that, following service, "He worked in a reproduction department where he was exposed to occupational noise. Recreational noise exposure history includes hunting and use of chain saws." The claims folder was available to and reviewed by the examiner. At that time, the examiner opined that "it is not at least as likely as not that tinnitus is the result of noise exposure in the military." A persuasive rationale was discussed in connection with this opinion; the examiner cited the significant "absence of documentation or complaints of tinnitus in service records" and the fact that "Enlistment and separation examination document normal whisper tests." Additionally, the examiner considers the DD214's identification of the veteran's "primary specialty as a unit stockman" and, further, cites that "there is a history of non-military noise exposure." The Board acknowledges the veteran's testimony, during his February 2008 Board hearing, that he was exposed to loud noises during service and did not experience substantial acoustic trauma following service; however, even considering the veteran's competent testimony regarding his recollections of noise exposure, the Board finds that the February 2005 VA examiner's discussed rationale remains persuasive in its reliance upon the absence of any pertinent documented signs of tinnitus in service medical records or any abnormal findings when the veteran's hearing was evaluated at his service separation examination. Even if the veteran experienced loud noises in service, the absence of any documentation showing incurrence of tinnitus during service or at the service separation examination offers a reasonable basis for a medical examiner to conclude that it is unlikely that a chronic tinnitus pathology began during or was caused during service, particularly when that service period pre- dates the earliest contemporaneous documentation of tinnitus by more than four decades. In any event, although the veteran has more recently testified that his post-service noise exposure was insignificant, the February 2005 VA examiner interpreted the veteran's own description of post-service noise exposure as significant to the likely etiology of tinnitus; the audiologist's analysis of this information is competent and significantly probative in assessing the likely etiology of tinnitus. Thus, the February 2005 VA examination report presents competent medical evidence which weighs against finding an etiological link between current tinnitus and the veteran's service nearly five decades ago. The Board notes that there is no medical opinion of record which indicates, to the contrary, that it is likely that the veteran's current tinnitus is etiologically linked to service. With regard to the veteran's hearing loss, the VA examiner who conducted the February 2005 examination was given an opportunity to revisit the case and offer an opinion specifically addressing the etiology of the veteran's hearing loss in a December 2007 addendum to the February 2005 report. The December 2007 addendum explains that the examiner re- reviewed the claims folder, and again observed that the "enlistment and separation examinations document normal whispered voice tests." Further, the examiner again noted that "Service medical records are negative for complaints and/or treatment of hearing loss." The December 2007 addendum also notes "post-military noise exposure" and that the veteran's military specialty as a unit stockman "is not suggestive of being routinely subjected to hazardous noise exposure." Based upon the discussed rationale, the December 2007 addendum concludes that "the bilateral hearing loss is less likely as not caused by or a result of military service, including noise exposure." Again, even accepting the veteran's own testimony that he was exposed to loud noises during service and not exposed to acoustic trauma following service, the Board views the December 2007 medical opinion as reasonable and persuasive in citing the veteran's documented normal hearing evaluation at his service separation examination and the absence of any indication of hearing problems in the service medical records. Although the veteran has more recently testified that his post-service noise exposure was insignificant, the VA examiner interpreted the veteran's own February 2005 description of post-service noise exposure as significant to the likely etiology of his current hearing loss; the audiologist's analysis of this information is competent and probative in assessing the likely etiology of hearing loss. The examiner's rationale is persuasive to support a finding that it is unlikely that the current chronic hearing loss began during or was caused during service, particularly when that service period pre-dates the earliest contemporaneous documentation of hearing loss by more than four decades. The Board acknowledges that, by advancing this claim, the veteran himself is asserting that his current hearing loss and tinnitus are causally linked to his service. However, while the veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or etiology. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder. In any event, the Board finds that the medical opinions offered by the trained VA audiology specialist in consideration of the evidence in the claims folder carries more probative weight than the veteran's assertions in resolving the question of medical causation in this case. The Board acknowledges that the veteran has testified that he was exposed to loud noises during service, that he experienced hearing loss and tinnitus during service, that he reported to sickbay regarding his hearing problems during service, that he reported his hearing loss to the VA shortly after service, and that he obtained hearing aids shortly after service. The veteran is competent to testify as to his recollections of such experiences. However, the veteran's recollections of events from more than four decades ago is less probative than contemporaneous records from the period of time in question. It is significant that the veteran's service medical records show no complaints of hearing problems during service, and no hearing problems during his separation examination in September 1958. Furthermore, there is no contemporaneous evidence of the veteran reporting hearing problems to VA in 1959 and there is no documentation that the veteran required hearing aids shortly after service, or for many years after service. The contemporaneous documentation available from the pertinent period of time, especially in light of the analysis by a competent audiology specialist, carries more probative weight than the veteran's testimony of his recollection of experiences from over four decades ago. Thus, in this case, the Board does not find that the veteran's lay testimony is sufficient to demonstrate entitlement to service connection in light of the contrary medical evidence and the objective contemporaneous evidence of record. The Board also acknowledges that the veteran's testimony indicates that he has experienced a continuity of his pertinent symptomatology since service. Again, the Board notes that veteran is competent to testify as to his experience of such symptoms over the years. However, in this case, the essential issue is whether any hearing loss or tinnitus began or was caused during service. Thus, the probative contemporaneous evidence during service showing no complaints of pertinent symptoms and no pertinent abnormalities at the service separation medical examination are essential; the Board finds the contemporaneous documentation more probative than the veteran's hindsight recollections of symptoms from more than four decades later. As the most probative evidence regarding this critical period of time weighs against the claims, any assertions otherwise regarding chronicity of symptoms in the following decades cannot demonstrate that service connection is warranted. The absence of contemporaneous evidence of pertinent symptoms or diagnoses during service or for many years after service, together with the competent medical opinion finding an etiological link between the current disabilities and service, constitute significantly probative evidence against the claims. The evidence against the claims probatively outweigh the veteran's current testimony recalling a continuity of hearing loss and tinnitus symptoms which began during service. There is no competent medical evidence in the record suggesting a causal link between the veteran's current hearing loss and his service, nor between the veteran's current tinnitus and his service. The Board has found no contemporaneous evidence in the record to demonstrate that the veteran had any decrease in hearing acuity or any onset of tinnitus during service or shortly thereafter. The Board is presented with an evidentiary record which does not show chronic hearing loss or tinnitus during service or for over 47 years following service. With all of the competent medical evidence weighing against finding a causal link between the veteran's current disabilities and his service, and considering the length of time following service prior to any medical evidence of hearing loss or tinnitus, the Board finds that the preponderance of the evidence is against the veteran's claims of service connection for hearing loss and tinnitus. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). ORDER The appeal is denied as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs