Citation Nr: 0812251 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-07 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from August 1966 to April 1971, including combat service in the Republic of Vietnam, and his decorations include the Combat Action Ribbon. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO), which denied the benefits sought on appeal. Along with a written brief presentation, in April 2008 the veteran's representative submitted a copy of an internet article relating that a punctured eardrum could result in conductive hearing loss. The veteran did not submit a waiver of initial consideration of this article by the RO. Applicable VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2007). In this case, the Internet article is not pertinent to the veteran's claim and need not be referred to the RO for review and preparation of an SSOC. While there is evidence that the veteran now has left ear conductive hearing loss, there is no evidence (nor does he contend) that he had a perforated eardrum during service. FINDINGS OF FACT 1. The competent medical evidence indicates that the veteran does not currently have a right ear hearing loss disability, as defined by the applicable VA regulation. 2. The competent medical evidence, overall, does not demonstrate that the veteran's left ear hearing loss is related to active duty. 3. The competent medical evidence, overall, does to demonstrate that the veteran's tinnitus is related to active duty. CONCLUSIONS OF LAW 1. Service connection for right ear hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2007). 2. Service connection for left ear hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 3. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 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 from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (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 claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied with respect to the first three elements by way of a July 2003 letter sent to the appellant that fully addressed the first three notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was not asked to submit evidence and/or information in his possession to the AOJ. Thus, the VCAA duty to notify has not been satisfied with respect to the fourth notice element of asking the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication. The veteran has been represented by a service organization during the entire appeal. In addition, on a March 2005 VA Form 646, he certified that he desired appellate review "on the evidence now of record" and indicated that he rested on the answers to the statement of the case and had no further argument. In doing so, he explicitly communicated that he had no additional information or evidence to submit. This communication makes it clear that the veteran has submitted all evidence and/or information in his possession and thus the purpose of the fourth notice element was not frustrated. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA medical records. The veteran declined an opportunity to set forth his contentions during a hearing before a Veterans Law Judge. The appellant was afforded a VA examination in September 2003 and addenda were obtained. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Turning to the merits of the veteran's claims, a claimant with active service may be granted service connection for disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. The disease entity for which service connection is sought must be "chronic" as opposed to merely "acute and transitory" in nature. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Hearing loss disability for VA purposes is defined by regulation, and may be shown by the following: (1) when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater, or (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz are 26 decibels or greater; or (3) when speech recognition using the Maryland CNC Test is less than 94% correct. 38 C.F.R. § 3.385 (2007). When audiometric test results at separation from service do not meet the regulatory requirements for establishing a disability within the meaning of 38 C.F.R. § 3.385 at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claims for service connection for bilateral hearing loss and tinnitus. The veteran's service medical records are negative for complaints, symptoms, findings or diagnoses related to hearing loss, tinnitus, or ear pathology. There is no evidence of pertinent complaints, symptoms, findings or diagnoses within one year of the veteran's separation from service. Because the claimed conditions were not seen during service, service connection may not be established based on chronicity in service or continuity of symptomatology thereafter. 38 C.F.R. § 3.303; Savage v. Gober, 10 Vet. App. 488, 494-497 (1997). Because the claimed conditions were not seen within one year of the veteran's separation from service, presumptive service connection is not warranted. The earliest post-service indications of hearing loss and tinnitus are dated decades after the veteran's separation from active duty. The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). On VA audiological evaluation in September 2003, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 10 15 LEFT 50 40 30 30 30 The relevant average hearing threshold level was 14 on the right and 33 on the left. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The veteran reported serving in the main engine room of a ship and exposure to engine room noise and large guns. Bilateral periodic tinnitus was present and began approximately one year earlier. The report reviews the veteran's service medical records. The examiner stated that the veteran's current hearing loss was consistent with ear pathology, not noise exposure. The veteran denied ear pathologies (both in and out of service), ototoxic medications and family history of hearing loss. Since the veteran reported the onset of tinnitus approximately one year ago, and his hearing loss was consistent with ear pathology and not noise exposure, it was as likely as not that the veteran's hearing loss and tinnitus did not result from military noise exposure. These VA examination findings constitute evidence against service connection for right ear hearing loss as they do not demonstrate right ear hearing loss disability for VA purposes under any of the alternate criteria outlined above. Accordingly, the veteran has not satisfied the threshold criterion of current disability with respect to his claim seeking service connection for right ear hearing loss, and service connection for that disability must be denied. In a December 2003 addendum, the VA examiner reviewed the results of the September 2003 examination, the veteran's service medical records and the veteran's own reported history. The examiner stated that, due to the type and configuration of the veteran's hearing loss, it was as likely as not that the veteran's tinnitus and hearing loss were NOT the result of military noise exposure (emphasis in original). A May 2004 VA consultation note from the same examiner reviewed the findings from the September 2003 VA examination report, as well as the history the veteran reported at that time. The veteran did not have any high frequency sensorineural hearing loss, which was typical of noise exposure, but had a conductive hearing loss in the left ear, typical of ear pathologies. During the current consultation, the veteran reported aural pain after gun fire and after aircraft practiced landing on a nearby destroyer. He was not interested in a repeat hearing test. The September 2003 VA examination report, December 2003 addendum and May 2004 outpatient consultation report constitute evidence against service connection for left ear hearing loss and tinnitus. Although the September and December 2003 opinions are not as clear as they might be, the three reports together make clear the examiner's judgment that it is not at least as likely as not that the veteran's left ear hearing loss and tinnitus were incurred during active duty. In a second December 2003 addendum, a different VA examiner noted that, after review of the veteran's audiology results, the veteran's hearing loss was not as likely as not related to noise while in the military. This addendum also constitutes evidence against service connection for left ear hearing loss. The Board recognizes that if a veteran engaged in combat with the enemy during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in service, such satisfactory lay or other evidence of service incurrence if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007). In this case, the veteran's Combat Action Ribbon reflects that he did engage in combat with the enemy, and therefore noise exposure can be presumed. However, the various VA opinions before the Board constitute clear and convincing evidence that the veteran's current left ear hearing loss and tinnitus are not related to noise exposure, regardless of where or when such noise exposure occurred. Accordingly, the presumption set forth at 38 U.S.C.A. § 1154(b) does not apply to the veteran's claims. The Board also recognizes the veteran's assertions that he has bilateral hearing loss and tinnitus due to noise exposure during active duty. As a layperson, however, the veteran is not competent to provide an opinion requiring medical knowledge, such as a medical diagnosis of the degree of hearing loss required as demonstrated by audiological testing or an opinion as to the etiology of a condition. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu, supra. See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Thus, his own contentions do not constitute competent medical evidence for VA purposes. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (formerly § 310). In the absence of proof of a present disability, there can be no valid claim. The Board's perusal of the record in this case shows no competent proof of present disability. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992)." Brammer, 3 Vet. App. 223, 225 (1992). As there is no evidence of a current diagnosis of hearing loss for VA compensation purposes in the right ear, service connection is not warranted. As the preponderance of the evidence is against service connection for left ear hearing loss and tinnitus, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs