Citation Nr: 0812491 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-22 001 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision by the RO which denied service connection for bilateral defective hearing and tinnitus. FINDINGS OF FACT 1. All evidence necessary for adjudication of this claim have been obtained by VA. 2. The veteran is not shown to have a hearing loss at present which is related to service. 3. The veteran is not shown to have tinnitus at present which is related to service. CONCLUSIONS OF LAW 1. Bilateral defective hearing was not incurred in or aggravated by military service nor may sensorineural hearing loss be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.303, 4.85, 4.86, Part 4, Diagnostic Code 6100 (2007). 2. The veteran does not have tinnitus due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") held that upon receipt of an application for service connection VA is required by law 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id. VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(a)-(c) (2007); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the claim, a letter dated in August 2005, fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran was notified of the evidence that was required to substantiate his claim, and that VA would assist him in obtaining evidence, but that it was ultimately his responsibility to provide VA with any evidence pertaining to his claim, including any evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). All VA and private medical records identified by the veteran have been obtained and associated with the claims file. The veteran was offered an opportunity for a personal hearing, but declined. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. Since the Board has concluded that the preponderance of the evidence is against the claims of service connection for bilateral defective hearing and tinnitus, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman, 19 Vet. App. 473. In summary, the veteran has been made aware of the information and evidence necessary to substantiate his claims and is familiar with the law and regulations pertaining to the claims. See Desbrow v. Principi, 17 Vet. App. 207 (2004); Valiao v. Principi, 17 Vet. App. 229, 232 (2003). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir. 2006). Service Connection: In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and sensorineural hearing loss is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides: 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, 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). Discussion & Analysis The veteran contends that his current hearing loss was caused by exposure to acoustic trauma in service. However, he has presented no competent evidence to support his assertions. The veteran, as a layperson, is not competent to offer an opinion as to medical causation or etiology. Epps v. Brown, 9 Vet. App. 341 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). See also Franzen v. Brown, 9 Vet. App. 235 (1996). The service medical records showed no complaints, treatment, abnormalities, or diagnosis referable to any hearing problems in service. Audiological findings (as converted to ISO units currently in effect) at the time of his service enlistment examination in July 1967 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 x 10 LEFT 10 5 5 x 10 (NOTE: Prior to November 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The above audiological findings have been converted to the ISO standard.) On a Report of Medical History for separation from service in May 1969, the veteran specifically denied any history of ear trouble or hearing loss, and no disease or defects of the ears were noted on physical examination. Audiological findings at separation were as follows: HERTZ 500 1000 2000 3000 4000. RIGHT 0 5 5 x 5 LEFT 0 0 5 x 5 Private audiological reports, received in September 2005, showed that the veteran was evaluated for hearing loss in July and August 1996. The July report noted that the veteran had been wearing hearing aids since 1993. The August report noted that the veteran worked in loud noises for years and was known to have nerve loss and tinnitus. The impression on audiological evaluation was mild to moderate sloping sensorineural hearing loss, bilaterally consistent with noise exposure. The evidentiary record includes statements from a friend, co- worker, and the veteran's wife, to the effect that the veteran had hearing problems for many years and that he did not work around loud noises for any extended period of time. On VA examination in October 2005, audiological findings were as follows: HERTZ 500 1000 2000 3000 4000. RIGHT 60 65 70 85 105+ LEFT 55 70 75 95 105+ The diagnoses included sensorineural hearing loss, bilaterally and recurrent tinnitus. In an addendum report in October 2005, the VA audiologist indicated that the claims file was reviewed and included a description of the veteran's complaints and medical history. The audiologist opined that the veteran's hearing loss and tinnitus were not caused by or the result of noise exposure in service. The examiner explained that the veteran had normal hearing at the time of service enlistment and at separation, and that there was no objective evidence of a hearing loss until many years after service. As such, the veteran's hearing loss could not have been incurred in service. The examiner also noted that the veteran reported the onset of tinnitus to sometime in the 1980's, which was too distant to be related to military service. The Board finds the medical opinion persuasive as it was based on a longitudinal review of the entire record. Moreover the veteran has presented no competent evidence to dispute that opinion. While the veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Barr v. Nicholson, 21 Vet. App. 303, (2007); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). As there is no competent medical evidence of record suggesting a connection between the veteran's current hearing loss and tinnitus to service, and no objective evidence of any manifestations until many years after his discharge from service, the record affords no basis to grant service connection. Accordingly, the Board finds that the preponderance of the evidence is against the claims of service connection for bilateral defective hearing and tinnitus. ORDER Service connection for bilateral defective hearing is denied. Service connection for tinnitus is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs