Citation Nr: 0813182 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-10 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from April 1944 to March 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal of a May 2004 decision of the Department of Veterans Affairs Regional Office (RO) in Indianapolis, Indiana which denied the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. In April 2008, a motion to advance this case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (2007). FINDINGS OF FACT 1. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's currently diagnosed bilateral hearing loss and his military service. 2. The competent medical evidence of record does not support a finding that tinnitus currently exists. CONCLUSIONS OF LAW 1. 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). 2. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for bilateral hearing loss and tinnitus. In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. 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]. The veteran was informed of the relevant law and regulations pertaining to his service connection claims in a letter from the RO dated February 17, 2004 which informed the veteran that the evidence must demonstrate "a relationship between your current disability and an injury, disease or event in military service." The February 2004 letter also informed the veteran that this relationship is presumed for "veterans who have certain chronic or tropical diseases which become evident within a specific period of time after discharge from 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 February 2004 letter, as well as subsequent letters from the RO dated April 16, 2005 and January 10, 2006. Specifically, the veteran was advised in the February 2004, April 2005 and January 2006 letters 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. With respect to private treatment records, the letters informed the veteran that VA would make reasonable efforts to obtain relevant records not held by any Federal agency. Included with the 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 February 2004 letter informed the veteran that releases for Drs. L. and A. had been received but did not contain an address; the letter requested that the veteran submit this evidence so that records from these private physicians could be obtained. The April 2005 and January 2006 letters 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 originals]. The Board notes that the April 2005 and January 2006 VCAA letters 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 the veteran received additional notice via the April 2005 and January 2006 VCAA letters, 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 January 17, 2008 Informal Hearing Presentation. 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 a letter from the RO dated March 20, 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 letter 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 letter 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 letter 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. The duty to assist also includes 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(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). A medical examination is unnecessary in this case, however, because there is no objective evidence of in-service acoustic trauma or ear disease (for both claims) or current disability (for the tinnitus claim). In the absence of such evidence, obtaining a medical nexus opinion would be futile. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Obtaining a medical nexus opinion under the circumstances presented in this case would be a useless exercise. In so concluding, the Board finds that the circumstances here presented differ from those found in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no objective evidence of in-service disease or injury, nor is there a current diagnosis of tinnitus. Accordingly, the Board finds that under the circumstances of this case, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA 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. The veteran initially requested a personal hearing, but he withdrew that request in April 2005. See 38 C.F.R. §§ 20.702(e) and 20.704(e) (2007). 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, as is evidenced by a March 2005 VA audiology consult report. 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 are negative for complaints of or a diagnosis of tinnitus. Indeed, the veteran specifically denied tinnitus during the above-referenced March 2005 VA audiology consult. There is no competent medical evidence of record to the contrary. As was detailed in the VCAA discussion above, the veteran has been accorded ample opportunity to present medical evidence of 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 element (2), in-service disease and injury, the Board will separately address disease and injury. Concerning in-service disease, the veteran's April 5, 1944 entrance examination was completely normal with respect to the veteran's hearing, various interim examinations are negative for hearing problems during service, and his March 1946 separation physical examination, including audiology testing, was pertinently negative. The record contains an April 8, 1944 handwritten notation of "defective hearing". This is three days after the pertinently negative enlistment physical examination. However, nothing specific was noted; there are no audiology testing results accompanying the notation to support a finding of hearing loss at that time, nor is there any follow-up report. The Board finds that this brief and vague notation is outweighed by the remainder of the service medical records. The Board additionally notes that bilateral hearing loss not present until March 2005, 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 in-service injury, the veteran's representative has argued that combat service should be conceded in the instant case. See, e.g., the January 19, 2006 Statement of Accredited Representation in Appealed Case. However, there are no awards or decorations indicative of combat status, and the veteran himself has not contended that he was in combat. The veteran argues that he sustained injury to his right ear while serving aboard the USS French DE-367 in the Atlantic Ocean. See, e.g., a November 17, 2004 Statement. However, the evidence of record does not support the veteran's contention that he sustained any ear injury. There is no objective, contemporaneous evidence that the veteran sustained acoustic trauma in the performance of his duties. Crucially, the veteran's separation physical examination is pertinently negative for his report of an ear injury. Moreover, there is no mention of ear problems by the veteran until he filed his initial claim of entitlement to VA benefits in January 1991, 45 years after he left military service in March 1946. See Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]; see also Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]. The lack of any evidence of ear problems after service, and the filing of the claim for service connection 45 years after service, is itself evidence which tends to show that no injury to the ear was sustained in service. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact]; see also 38 C.F.R. § 3.102 [noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence]. In essence, the veteran's claim rests of his own recent statement that he sustained an ear injury in service. However, his statement is outweighed by the utterly negative service medical records, as well as the lack of objective evidence of ear problems for decades after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. In short, because the record as a whole clearly demonstrates that the veteran never mentioned an injury in service until he brought up the subject in connection with his claim for VA benefits approximately 45 years after his separation from service, the Board finds his recent statements concerning such an injury to be lacking in credibility and probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. Hickson element (2) is therefore not met, and the veteran's claim of entitlement to service connection loss fails on this basis. With respect to Hickson element (3), there is no competent evidence of record that establishes a causal relationship between tinnitus and/or bilateral hearing and his military service. In the absence of in-service disease or injury for both claims and in the absence of a current diagnosis of tinnitus, it would seem that such medical nexus opinion would be impossible. To the extent that the veteran and his representative contend that his current hearing loss and/or tinnitus 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. See Espiritu v. Derwinski, 2 Vet. App. 491, 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]. 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. Accordingly, the Board finds that Hickson element (3) is not met for either 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 bilateral hearing loss and tinnitus. 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 bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs