Citation Nr: 0812182 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-10 537 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas 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 Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to January 1968. The present matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision in which the RO denied the veteran's claims for service connection for bilateral hearing loss and for tinnitus. In September 2002, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2004, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2004. In August 2006, the appellant testified during a hearing before the undersigned Veterans Law Judge at a satellite office of the RO; a transcript of that hearing is of record. In March 2007, the Board remanded these matters to the RO (via the Appeals Management Center (AMC), in Washington, D.C) for further action, to include scheduling an examination and obtaining pertinent medical records. After accomplishing the requested action, the AMC continued the denial of the claims on appeal (as reflected in a September 2007 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. Although the veteran has alleged experiencing significant in-service noise exposure, there is no objective evidence of hearing loss for many years after service, and the only competent, probative opinion to address the question of whether there exists a nexus between alleged in-service noise exposure and the veteran's hearing loss weighs against the claim. 3. The first clinical evidence reflecting complaints of tinnitus was many years after service, and the only competent, probative opinion to address the question of whether there exists a nexus between the veteran's current tinnitus and service weighs against the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 C.F.R. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2007). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). VA's 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 effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an April 2007 post-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claims for service connection for bilateral hearing loss and for tinnitus, as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and the need for the appellant to advise VA of and to submit any further evidence that is relevant to the claims. The April 2007 letter also generally informed the appellant how disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations. After the issuance of the notice described above, and opportunity for the appellant to respond, the September 2007 SSOC reflects readjudication of the claims. Hence, the appellant is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also, Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records; post-service private medical records; outpatient treatment records from the VA Medical Center (VAMC) in San Antonio, from the Frank M. Tejeda VA Outpatient Clinic in San Antonio, and from the Corpus Christi Outpatient Clinic in Corpus Christi, Texas; as well as reports of VA audiological evaluations. Also of record and considered in connection with these claims is the transcript of the August 2006 Board hearing as well as various written statements provided by the veteran and by his representative, on his behalf. The Board notes that the RO attempted to obtain private medical records which the veteran referred to during his Board hearing and as requested in the Board's March 2007 remand. However, the veteran has not responded to requests dated April 2007 and September 2007 for current authorizations to obtain these records from his former employer and his private physician. Hence, no further action in this regard is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the appellant has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). The veteran asserts that his exposure to loud noise while in service has caused the claimed bilateral hearing loss. He has alleged in-service excessive noise exposure associated with firing weapons, from incoming enemy mortars, and from riding in the back or on the top of armored vehicles during his service in Vietnam. His DD Form 214 shows his military occupational specialty (MOS) as light weapons infantry man. Service personnel records show that he served in Vietnam from July 1966 to July 1967 as a truck or carrier driver and that from August 1967 to January 1968 his principal duty was mortar gunner while stationed at Fort Hood. The service medical records reflect no complaints, findings, or diagnosis of tinnitus or hearing loss in either ear during active service. Service medical records include a September 1967 treatment record indicating that chronic and acute flare-up of otitis media in the left ear as treated with Ampicillin. Moreover, reports of three different hearing evaluations fail to show a hearing loss. For example, at discharge in January 1968, audiometric testing revealed pure tone thresholds, in decibels, as follows (American Standards Association (ASA) units are converted to International Standards Organization (ISO) units): HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 No response 5 LEFT 20 10 15 No response 10 Therefore, the veteran was not found to have right or left ear hearing loss in service. The Board notes, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Private treatment records dated from April 1993 to November 2003 contain no complaints, or diagnosis of either hearing loss or tinnitus. As noted above, the veteran did not respond to requests to authorize obtaining annual hearing examinations from his former employer. VA outpatient treatment records dated from August 2002 to August 2007 reflect no complaints, findings, or diagnosis of hearing loss or tinnitus, except for two audiological evaluations noted below. In the report of a December 2003 VA audiological evaluation, the history of the veteran's bilateral hearing loss was said to be 30 years or more. Noise exposure in-service and post- service was noted, including gunfire and artillery noise while in service and heavy machinery noise, such as compressors and pumps, while working in a refinery post service. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 50 50 LEFT 15 15 15 60 60 Speech recognition scores on the Maryland CNC Word List were 94 percent in the veteran's right ear and 88 percent in the left ear. A VA examiner summarized audiological test results, indicating that hearing was within normal limits through 2000 Hertz in both ears. There was a moderate sensorineural hearing loss from 3000 to 4000 Hertz in the right ear and a moderately severe sensorineural hearing loss from 3000 to 4000 Hertz in the left ear. Tinnitus was noted for the previous 5 to 10 years and its onset was not related to any specific event. Tinnitus occurred once or twice a month and was described as mild, but tinnitus made it difficult for the veteran to fall asleep. The veteran described his tinnitus as being as loud as a whisper with a high-pitched ringing. The December 2003 examiner also indicated that he was asked for an opinion regarding hearing loss and tinnitus being at least as likely as not related to military service. He noted that review of the claims file showed many hearing evaluations in service showed normal hearing. With regard to tinnitus, the veteran had said that it occurred one to two times per month which the examiner opined could be described as normal. The examiner did not address the likelihood that either hearing loss or tinnitus was related to the veteran's service. During his August 2006 Board hearing, the veteran testified that his ears bled once while serving in Vietnam when he was being evacuated from the field to a hospital for treatment of hepatitis (Transcript, p. 6). The veteran also said that he wore hearing protection, either muffs or earplugs, while employed at a refinery in Corpus Christi from 1977 onwards (Transcript, pp. 7-8). The veteran also testified that his tinnitus first manifested after firefights in Vietnam with ringing in his ears sometimes sounding for days, but he conceded that he never informed the doctor at his separation physical examination of tinnitus (Transcript, p. 9). During an August 2007 VA audiological evaluation, the veteran complained of hearing difficulty with both ears beginning in service in 1968. He denied a history of ear infections, ear surgery, severe head injury, familial hearing loss, and hearing aid use. The veteran reported occasional dizziness which he described as an unsteady, light-headed feeling. Audiometric findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 60 60 LEFT 20 20 30 65 60 Speech recognition scores on the Maryland CNC Word List were 96 percent in the veteran's right ear and 92 percent in the left ear. The VA examiner assessed a moderately severe sensorineural hearing loss at 3000 Hertz and 4000 Hertz for the right ear and a mild to moderately severe sensorineural hearing loss from 2000 Hertz to 4000 Hertz for the left ear. The veteran reported that his tinnitus began following military service and that it now occurs two to three times a day in both ears. He described the tinnitus as moderate and that it interfered with hearing, communication, and with falling asleep at night. He said that his tinnitus was as loud as a whisper and had a high-pitched ringing quality. The August 2007 examiner opined that it was not at least as likely as not that the veteran's hearing loss and reported tinnitus originated during military service as the veteran's hearing in both ears was within normal limits during service. In an October 2007 signed statement, the veteran indicated that he is now required to wear hearing aids in both ears. As noted above, the post-service evidence supports a finding of current hearing loss in each ear to an extent recognized as a disability, as defined by 38 C.F.R. § § 3.385. The veteran also has complained of ringing in his ears, which he is competent to assert. See Charles v. Principi, 16 Vet. App. 370 (2002). However, the veteran's claims for service connection for hearing loss and tinnitus must be denied because the competent, probative evidence establishes that there is no medical nexus, or relationship, between either disability and the veteran's period of service. As noted above, there is no evidence of complaints, findings, or diagnosis of either disability until many years after service discharge. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the only competent opinion to address the etiology of the veteran's hearing loss and tinnitus weighs against the claims. The August 2007 VA examiner considered the veteran's complaints and description of noise exposure, both during and after service, and the evidence in the claims file. However, after examining the veteran, the examiner concluded that neither the veteran's hearing loss nor tinnitus was incurred in service. The Board finds such opinion probative of the medical nexus question, based as it was, on both examination of the veteran and consideration of his documented medical history and assertions. Hence, the only competent, probative opinion to address the relationship between the veteran's current hearing loss and tinnitus and service weighs against the claim, and neither the veteran nor his representative has identified, presented, or alluded to the existence of a contrary medical opinion--i.e., one that, in fact, establishes a relationship between hearing loss and/or tinnitus and service. In addition to the medical evidence, the Board has considered the veteran's oral assertions (advanced during the hearing), and the written assertions advanced by him and by his representative, on his behalf; however, none of this evidence provides a basis for allowance of either claim. The record does not support the occurrence of any specific in-service incident(s) of acoustic trauma, as the veteran has alleged. Nonetheless, given the veteran's DD-214 and other service evidence noted above, the Board accepts, as credible, the veteran's assertions of in-service noise exposure. He is competent to assert the occurrence such "injury" in service, and the Board finds that exposure to noise is consistent with the veteran's service, in Vietnam, and a light weapons infantryman. See 38 U.S.C.A. § 1154. However, to whatever extent that the veteran and his representative are attempting to establish a medical nexus between any noise exposure (or other incident of service) and each claimed disability-the matter upon which each claim turns-on the basis of assertions, alone, such attempt must fail. Matters of diagnosis and etiology are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claims for service connection for bilateral hearing loss and for tinnitus must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs