Citation Nr: 0811777 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-31 800A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had 20 years of active duty service until his retirement in September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at an RO personal hearing in April 2005. The Board previously remanded these issues in August 2007. FINDINGS OF FACT 1. The veteran's hearing acuity is not productive of an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater, or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater, or speech recognition scores less than 94 percent using the Maryland CNC Test. 2. Tinnitus was not manifested during the veteran's active duty service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the veteran's active duty service, and the service incurrence of sensorineural hearing loss may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Bilateral tinnitus was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R §§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in June 2003, January 2005, and August 2007 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also 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 also notes that the January 2005 VCAA letter notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised, at page 3, to submit evidence in his possession that pertains to his claim. Thus, the Board finds that 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. The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the veteran in June 2003, which was prior to the September 2003 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board recognizes that subsequent VCAA notices were provided after the initial decision. However, the deficiency in the timing of these notices was remedied by readjudication of the issues on appeal in the subsequent supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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 notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 488. In the present appeal, the June 2003, January 2005 and August 2007 notices provided what type of information and evidence was needed to substantiate a claim for service connection. Further, the August 2007 notice as well as a March 2006 letter informed the veteran of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. Thus, the requirements set forth in Dingess/Hartman have been met. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service medical records, VA treatment records and a VA examination report. 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). No additional pertinent evidence has been identified by the claimant. The veteran was afforded a VA examination in September 2007. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination report obtained contains sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not required. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal. Analysis 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 suffered or disease contracted 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). 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). 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. Bilateral Hearing Loss The veteran is seeking entitlement to service connection for bilateral hearing loss. 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 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. As service medical records appeared to indicate a decrease in hearing acuity and the veteran testified at the RO hearing that he was exposed to high noise levels in service, the Board previously remanded this case so that the veteran could be afforded a VA audiological examination, which was done in September 2007. The September 2007 audiological evaluation of the veteran indicated pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Right 0 5 5 10 20 Left 0 5 5 15 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 98 percent in the left ear. The examiner indicated that the claims file was reviewed in conjunction with the examination. The examiner found that there was no current hearing loss in either ear. The examiner provided that the veteran had normal hearing sensitivity bilaterally. Given that the claims file was reviewed by the examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for appellate review. VA treatment records from August 2003 to January 2006 are silent with respect to any complaints concerning hearing loss. The only other pertinent medical evidence of record is a February 2005 private audiological evaluation, which showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Right 10 10 10 10 20 Left 10 5 15 25 30 It does not appear that the Maryland CNC speech recognition test was done in accordance with VA regulations. Nevertheless, the puretone threshold readings do not show a hearing loss disability in accordance with 38 C.F.R. § 3.385. The Board acknowledges that service medical records appeared to show decreased hearing acuity as well as the veteran's statements concerning the effect his hearing loss has on his daily activities. Nevertheless, in comparing the September 2007 VA examination results to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the preponderance of the evidence is against a finding that the veteran currently suffers from bilateral hearing loss disability as defined for VA compensation purposes. According to the September 2007 VA examination, the veteran does not have an auditory threshold of 40 decibels or greater in any of the frequencies; or 26 decibels or greater for at least three of the frequencies. Further, the veteran's speech recognition scores using the Maryland CNC Test were greater than 94 percent. In the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992). In sum, a preponderance of the evidence is against the veteran's claim for bilateral hearing loss. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Tinnitus The veteran is also seeking service connection for tinnitus. Service medical records are silent with respect to any complaints of tinnitus or ringing in the ears. In his hearing testimony, the veteran appeared to relate the ringing in his ears to his elevated blood pressure. He stated that he currently did not have ringing in his ears since he had started taking blood pressure pills. The only post service medical evidence concerning tinnitus is the September 2007 VA audiological examination. Again, the claims file was reviewed. The veteran reported military noise exposure including artillery, radar and generator units. He reported consistent use of hearing protection. The veteran denied non-military occupational noise exposure as well as recreational noise exposure. The veteran reported onset of periodic tinnitus, which occurred when he listened to the television too loud and drove in the mountains. The examiner opined that the claimed tinnitus was not caused by or related to acoustic trauma or hearing loss during military service and was more likely than not related to or caused by other factors, such as medications, medical conditions, or altitude changes. Therefore, based on the medical evidence of record, the Board finds that service connection for bilateral tinnitus is not warranted. There is no evidence of tinnitus while in service. The September 2007 VA audiological examination report stated that the veteran's tinnitus was not caused by or related to acoustic trauma. The first medical evidence record concerning tinnitus is the September 2007 examination, which was 11 years after service so there is no supporting evidence of a continuity of pertinent symptomatology. Significantly, in his hearing testimony, the veteran related the ringing in his ears to his elevated blood pressure for which he is not service-connected. Further, the Board has considered the veteran's contentions. However, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As noted above, the service medical records are completely silent as to any complaints of or treatment for tinnitus or ringing in the ears. Here, the veteran is competent to say that he experienced symptoms while in service. However, the veteran's contentions are outweighed by the September 2007 VA opinion finding that tinnitus is not related to service. Thus, again, a preponderance of the evidence is against the veteran's claim for tinnitus. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss and tinnitus is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs