Citation Nr: 0812393 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-00 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Marine Corps from September 1946 to September 1951. This case comes before the Board of Veterans Appeals (the Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which, in part, denied the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. Issues not on appeal The May 2003 RO rating decision also denied service connection for disabilities of the feet, shoulders and neck. The veteran did not disagree with that part of the decision. A May 2004 rating decision denied the veteran's claims of entitlement to service connection for bilateral flat feet. The RO granted service connection for PTSD in an April 2006 rating action and assigned a 10 percent disability rating. To the Board's knowledge, the veteran has not disagreed with any of those decisions, and none of those issues is in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. The competent medical evidence does not support a finding that tinnitus currently exists. 2. The competent medical evidence does not support a finding that a relationship exists between the veteran's currently diagnosed bilateral ear hearing loss and his military service. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Bilateral sensorineural hearing loss was not incurred in or aggravated by active military service and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for tinnitus and bilateral hearing loss. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his service connection claims in a letter from the RO dated October 10, 2002, including the necessity of evidence of "a relationship between your current disability and an injury, disease or event in service." The May 2004 letter also informed the veteran that for certain chronic disabilities presumptive service connection could be established if "you were diagnosed with the condition within one year after you left military service." Crucially, the veteran was informed of VA's duty to assist him in the development of his claims and advised of the provisions relating to the VCAA in the above-referenced October 2002 letter, as well as a subsequent letter from the RO dated May 22, 2006. Specifically, the veteran was advised in the May 2006 letter that VA would assist him with obtaining relevant records from any Federal agency, including records from the military, VA Medical Centers and the Social Security Administration. The October 2002 letter specifically indicated that records from the VA Medical Center (VAMC) in Martinsburg, West Virginia were being requested on his behalf. Both the October 2002 and May 2006 letters also informed the veteran that a VA medical examination would be scheduled if necessary to make a decision on his claims. With respect to private treatment records, the May 2006 letter informed the veteran that VA would make reasonable efforts to obtain relevant records not held by any Federal agency. Included with both letters were copies of VA Form 21-4142, Authorization and Consent to Release Information, a release for the veteran to sign and return so that VA could obtain private records on his behalf. The May 2006 letter further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide or, or VA cannot otherwise get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency" [Emphasis as in original]. The Board notes that the May 2006 VCAA letter specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim[s], please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us." This request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. After veteran received additional notice via the May 2006 VCAA letter, his representative submitted a statement on his behalf which did not indicate the presence of any outstanding evidence and asked the Board to expeditiously proceed to a decision on the appeal. See the October 18, 2006 Statement in Support of Claim. Neither the veteran nor his representative has since indicated that additional evidence exists which has not already been obtained. It thus appears that the veteran has no additional evidence in his possession which would influence the Board's decision. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. There has been a significant Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in letters from the RO dated March 20, 2006 and May 6, 2006 which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letters as to examples of evidence that would be pertinent to a disability rating, such as medical treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the March 2006 and May 2006 letters instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letters as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In the instant case, the Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, reports of VA treatment of the veteran have been associated with the claims folder. Additionally, the veteran was afforded a VA examination in November 2004, the report of which reflects that the examiner reviewed the veteran's past medical history, recorded his current complaints, conducted an appropriate audiological examination and rendered appropriate diagnoses and opinions. Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Accordingly, the Board will proceed to a decision. Pertinent law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In addition, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Service connection - hearing loss For certain chronic disorders, including sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2007). For the 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 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. 38 C.F.R. § 3.385 (2007). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley, supra. Combat status Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, "[VA] shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2007). However, the Court has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the veteran has a current disability or whether there was a nexus between the in- service event and the current disability. Analysis As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. In this case, it is undisputed that the veteran now has bilateral hearing loss, which is evidenced by November 2004 VA audiological examination findings. Hickson element (1) is therefore satisfied for the veteran's bilateral hearing loss claim. As for the tinnitus claim, the veteran's VA outpatient records (including a December 2002 VA audiology consult) and the November 2004 VA audiological examination are completely negative for complaints of or a diagnosis of tinnitus. There is no competent medical evidence of record to the contrary. To the extent that the veteran himself contends that he has a current tinnitus, it is now well-established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the veteran's own statements offered in support of his tinnitus claim are not competent medical evidence and do not serve to establish the existence of a current disability. As detailed in the VCAA discussion above, the veteran has been accorded ample opportunity to present medical evidence of current tinnitus. He has failed to do so. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. In the absence of any currently diagnosed tinnitus, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met as to the tinnitus claim, and it fails on this basis alone. With respect to Hickson element (2), in-service incurrence of disease or injury, the Board finds that the veteran did engage in combat with the enemy within the meaning of 38 U.S.C.A. § 1154(b) (West 2002). The veteran's participation in "operations against enemy forces in south and central Korea" is documented in his service personnel records, and his military occupational specialty was rifleman. Additionally, the veteran stated he fired weapons on a daily basis and was exposed to incoming artillery fire on frequent occasions. See the January 2004 substantive appeal. Accordingly, Hickson element (2) is met with respect to both claims. The Board additionally notes that bilateral hearing loss as defined under 38 C.F.R. § 3.385 was not present until December 2002, well beyond the period for presumptive service connection for sensorineural hearing loss. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). With respect to crucial Hickson element (3), medical nexus, the claim for entitlement to service connection for bilateral hearing loss fails. The record contains the November 2004 VA medical examination report, in which the examiner found that the veteran's hearing loss was "most likely the result of post-service noise exposure and/or aging." [The veteran is currently 79 years of age.] The Board assigns this medical opinion great probative weight. It was provided by a medical professional who examined the veteran and reviewed his VA claims folder. In addition, the examiner gave a rationale for her opinion: the veteran reported working 23 years post-service as a police officer, which the examiner found had more of an impact on his hearing than his period of active service. Moreover, the opinion appears to be congruent with the veteran's medical history, which was pertinently negative for ear symptomatology for over five decades after service. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a medical statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."]. There is no competent medical evidence to the contrary. To the extent that the veteran and his representative contend that his current hearing loss is related to his military service, it is now well established that lay persons without medical training, such as the veteran and his representative, are not competent to comment on medical matters such as date of onset or cause of a disability, or in the representative's case how medical professionals should weigh medical evidence in rendering opinions. See Espiritu, supra. The statements of the veteran and his representative offered in support of his claims are not competent medical evidence and do not serve to establish a medical nexus. The Board again notes that the provisions of 38 U.S.C.A. 1154(b) only provide an evidentiary presumption concerning events in service; they do not provide a substitute for evidence of a causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service. See Wade v. West, 11 Vet. App. 302, 305 (1999), as well as Libertine, Gregory and Kessel, all supra. Moreover, as noted immediately above, the examiner's opinion is consistent with the objective medical evidence of record, or more specifically the lack of ear symptomatology for decades after separation from service. Finally, if the veteran felt dissatisfied with the results of the November 2004 VA audiological examination, he was welcome to submit a more favorable opinion on his own. He did not do so. See 38 U.S.C.A. § 5107(a), supra. Accordingly, the Board finds that Hickson element (3) is not met, and the claim for entitlement to service connection for bilateral hearing loss fails on this basis alone. As for the veteran's tinnitus claim, in the absence of a current disability, medical nexus is an impossibility. Element (3) is therefore not met for that claim. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for tinnitus and bilateral hearing loss. Therefore, contrary to the assertions of the veteran's representative, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefits sought on appeal are accordingly denied. ORDER Service connection for tinnitus is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs