Citation Nr: 0812936 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-15 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for lung scarring and acute bronchitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The veteran served on active duty from January 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the veteran's claim of entitlement to service connection for hearing loss, a back disability, and lung scarring. A hearing was held at the RO in December 2006, and a videoconference hearing before the undersigned Veterans Law Judge in November 2007. The Board notes that the veteran appeared to indicate, in his testimony before the Board in November 2007, that he felt his cholesteatoma, for which he had surgery in 2004, was related to the ear problems he had in service. As such, this issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran did not have hearing loss in service or for many years after service; the evidence of record does not link the veteran's current hearing loss to service. 2. The veteran had an acute finding of back strain in service; the veteran's separation examination did not note any back problems; the evidence of record does not link the veteran's current back problems to service. 3. The veteran had bronchitis in service; there is no evidence of record indicating that the veteran has residuals from this ailment, and no evidence linking the veteran's current lung scarring to service. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2007). 2. A chronic back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2007). 3. Lung scarring or residuals of acute bronchitis were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). In April 2006, the agency of original jurisdiction (AOJ) sent a letter to the veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The April 2006 letter also provided the notice of the disability rating and effective date regulations, in accord with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No prejudice has been alleged, and none is apparent from the record. The VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining medical records. Consequently, the duty to notify and assist has been satisfied. Applicable laws provide that in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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(b). Service connection may also be granted on a presumptive basis for certain chronic disabilities, to include arthritis and sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year. 38 C.F.R. §§ 3.307, 3.309(a) (2007). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to the condition as to which, under Court case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic then generally a showing of continuity of symptomatology after service is required for service connection. The United States Court of Appeals for Veterans Claims (Court) has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). bilateral hearing loss Taking into account all relevant evidence, the Board finds that service connection for hearing loss is not warranted. In this regard, the Boards notes that there is no evidence of record linking the veteran's current hearing loss to service. The veteran's service medical records show no complaints of, or treatment for, hearing loss. Upon separation examination dated October 1957, the veteran was found to have normal hearing of 15/15 to whispered voice. The earliest evidence of record subsequent to service showing a finding of hearing loss is a letter dated April 2001 from a private physician, which indicates that the veteran's recent audiogram showed moderate hearing impairment in the left ear and severe hearing impairment in the right ear. Since that time, the veteran has been seen several times with a diagnosis of hearing loss, however, there is no evidence of hearing loss dated any earlier than 43 years after the veteran's separation from service, and no medical evidence has been presented linking the veteran's current hearing loss to service. While the veteran has testified that he experienced hearing loss shortly after service, there is simply no evidence of record to indicate a diagnosis of hearing loss any earlier than April 2001. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). While the veteran has also testified that he believes that the multiple colds and ear aches he had in service are related to his current hearing loss, again, no medical evidence is of record in support of this assertion. Furthermore, as a lay person, his testimony as to the etiology of his medical condition is of limited probative value. Grottveit, 5 Vet. App. 91, 93 (1993); Espiritu, 2 Vet. App. 492, 494 (1992). With no evidence having been presented to indicate that the veteran had hearing loss in service, or for many years after service, and with no evidence having been presented which links the veteran's current hearing loss to service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for hearing loss. back disability Taking into account all relevant evidence, the Board finds that service connection for a back disability is not warranted. In this regard, the Board notes that there is no medical evidence of record linking the veteran's current back disability to service. The veteran's service medical records do show that he was seen on three occasions in service, June 1956, December 1956, and April 1957, with diagnoses of back pain and back strain. However, the veteran's report of separation examination dated October 1957 noted the veteran's back to be normal. There is no indication in the veteran's claims file that he was seen again for any back problems until October 2003, when he reported having been knocked to the ground, resulting in pain to his lower back. X-rays at that time showed some chronic back changes, but nothing acute, and the veteran was diagnosed with a back strain. In January 2004, the veteran was seen again with back pain, and was found to have mild stenosis of L3-L4. In April 2004, the veteran reported that he had been experiencing on and off back pain for several years, which he had exacerbated in his fall six months prior. After examination, the veteran was diagnosed with mild spinal stenosis with symptoms suggesting neurogenic claudication. While the veteran was seen in service several times with back strain, these strains all appear to have been acute and transitory and resolved without residuals, as no back disability was noted on the veteran's separation examination report. Although the veteran was noted to have reported back pain in an April 2001 private letter, there is no medical evidence indicating that the veteran was diagnosed with a back disability until 2003, 45 years after the veteran's separation from service. See Maxson, 230 F.3d 1330, 1333. As there is no evidence of record that the veteran sustained a chronic back injury in service, as there is no evidence any earlier than 45 years subsequent to service indicating that the veteran had a chronic back condition, and as no medical evidence has been presented linking the veteran's current back disability to service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a back disability. lung scarring and acute bronchitis Taking into account all relevant evidence, the Board finds that service connection for lung scarring and acute bronchitis is not warranted. In this regard, the Board notes that there is no medical evidence of record linking the veteran's current lung scarring to service. The veteran was seen for treatment for bronchitis once in service, in November 1955, and was also seen for carbon monoxide poisoning once in service in January 1956. The veteran's report of separation examination dated October 1957 however showed the veteran's lungs to be normal, and did not show any complaints of any lung problems at that time, or any residuals of the veteran's bronchitis or carbon monoxide poisoning. There is no further evidence of record showing any problems with any lung disability until a private letter dated September 2001, which was based on a February 2001 physical examination. This letter noted that the veteran's chest X- ray showed mild scarring of the lining of the lungs (pleura). This was noted to be a common finding among asbestos workers. It was also noted that the veteran was still smoking cigarettes, and was told that smoking was particularly hazardous for workers who had been exposed to asbestos. Thus, while the veteran does have lung scarring, no evidence has been presented linking this disability to service, and in fact the evidence of record strongly suggests that this scarring is due to the veteran's history of working with asbestos. With no evidence having been presented to indicate that the veteran's lung scarring is due to service, with no indication of any lung scarring until more than 43 years after the veteran's separation from service, and with the only evidence of record pertaining to the etiology of the veteran's lung scarring indicating that it is related to his post service work exposure to asbestos, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this condition. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and they be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a back condition is denied. Entitlement to service connection for lung scarring and acute bronchitis is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs