Citation Nr: 0812927 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-10 952A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD B.R. Mullins, Associate Counsel INTRODUCTION The veteran had active service from September 1952 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Newark, New Jersey. The veteran was afforded a hearing before a hearing officer at the RO in Newark, New Jersey in October 2006. FINDINGS OF FACT 1. The veteran did not incur his hearing loss as a result of his military service. 2. The veteran did not incur his tinnitus as a result of his military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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). Proper notice from VA must inform the claimant of any information and medical or lay 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). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the statutory and regulatory notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome this presumption, VA must show (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 be awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the duty to notify was satisfied, for the most part, by way of letters sent to the veteran in November 2004 and June 2005 that fully addressed all four notice elements and were sent prior to the initial RO decision in this matter. These letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and information in his possession to the RO to assist in proving his claim. There is no allegation from the veteran that he has any additional evidence in his possession that is needed for a full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements described above have been satisfied as to both timing and content. With respect to the Dingess requirements described above, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal until March 2008. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims for service connection. As such, no disability rating or effective date will be assigned. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him 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 veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO attempted to obtain service records for this veteran that had not been associated with the claims file (some had previously been associated), but was informed that the records no longer existed, probably due to the fire that occurred in July 1973 at the National Personnel Records Center (NPRC) in St. Louis, Missouri. In any event, the veteran has submitted private hearing evaluations in support of his claim, and was afforded a VA compensation and pension examination in September 2005 and November 2006. Finally, the veteran was afforded a hearing in October 2006, where he was given an opportunity to explain his case and reveal any additional evidence he had in support of his claim. Significantly, neither the veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further assistance to the veteran is required to fulfill VA's duty to assist the veteran 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). Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2007). Further, 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). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2007). Analysis At the outset of this discussion, the Board notes that it appears that, as alluded to above, many of the veteran's service medical and personnel records appear to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973, and have not been located. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because the veteran's medical and personnel records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Reports of the veteran's induction and separation physical examination are associated with the claims file (along with dental records). The examination reports indicate that the veteran's hearing was within normal limits both on entrance and separation from service. Additionally, the veteran himself stated in his April 2006 appeal to the Board that he was never treated for or given a diagnosis of hearing loss while in service, so it would appear that even if the veteran's service records were available, they would not assist the veteran in supporting his claim. Therefore, the evidence of record establishes that the veteran's hearing loss and tinnitus did not have its onset while the veteran was in active service. No records exist indicating that the veteran was treated for or complained of hearing loss and tinnitus within one year of leaving service. The November 2006 examination report indicates that the veteran worked as an industrial machine mechanic for approximately 15 years until the company that employed him closed in 1982. The veteran stated that he received an audiometric examination from this employer but that he could not obtain the results since the company closed. According to the veteran during the October 2006, those records no longer exist. Also according to the veteran's hearing testimony, it appears that it was while working with this company that his hearing was first tested - every two years - and that this was when hearing loss was first discovered. The first evidence of record, however, that the veteran does in fact have a hearing disorder, consists of a private audiometric examination from July 2004. However, assuming hearing loss was diagnosed in 1982 or during the 15 years prior to that (on examinations conducted), this would still have been many several years after the veteran separated from service. The veteran has alleged that his family noticed his hearing loss years before the dated evidence of record, when they would ask the veteran why he played the television and radio so loudly. Even viewing this evidence in the light most favorable to the veteran, it does not establish that the veteran was actually suffering from hearing loss at this time, and it does not provide a nexus between the veteran's current hearing loss and tinnitus and his military service. At most, it establishes that the veteran's hearing loss was noticeable prior to the July 2004 examination, but without any medical evidence providing a nexus between the veteran's current hearing loss and tinnitus and the veteran's military service, service connection can not be established. Therefore, the Board has considered this evidence, and has concluded that it is not sufficiently credible to provide the necessary evidentiary nexus. The first VA audiometric examination took place in December 2004. During this authorized audiolocical examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 55 60 60 LEFT 20 55 80 80 80 Pure tone threshold averages were 53 for the right ear and 74 for the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 76 percent in the left ear. These results are indicative of a current hearing disorder. When interpreting these results, the examiner concluded that due to the lack of evidence in the file since 1954, the veteran's occupational noise exposure when working as a machine mechanic for an industrial tube company, and the veteran's family history of presbycusis, any opinion as to the cause of the veteran's hearing loss and tinnitus would be pure speculation. The veteran received another VA audiometric examination in November 2006. During this authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 70 65 60 LEFT 20 55 65 70 75 Puretone threshold averages were 60 for the right ear and 66 for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 86 percent in the left ear. The examiner diagnosed constant tinnitus and normal hearing at 500 Hz, sloping from a mild to moderately-severe sensorineural hearing loss through 4000 Hz. However, after considering these results in conjunction with the veteran's history of military and occupational noise exposure, the examiner concluded that the veteran's "hearing loss and tinnitus are less likely as not due to military noise exposure." Since the medical evidence of record indicates that the veteran's hearing loss was more likely than not connected to noise outside of his military service, service connection cannot be established. As a final matter, the Board recognizes that the veteran does in fact suffer from both hearing loss and tinnitus. Further, the Board has reviewed the veteran's hearing testimony, and finds that he truly does believe that his hearing loss and tinnitus are a direct result of exposure to noise from ammunition fire while in the military. However, since this case depends on a determination of medical etiology, the medical evidence in this case is more credible, and has been given more weight by the Board in its decision. A layperson is generally not capable of opining on matters requiring medical knowledge, such as the determination of the specific origins of a disorder. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The preponderance of the evidence is against the veteran's claim of entitlement to service connection for hearing loss and tinnitus. The claim must be denied. ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs