Citation Nr: 0813205 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-04 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from October 1969 to September 1971. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Travel Board hearing before the undersigned in July 2007. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The veteran's hearing loss is not related to any incident of his military service, including noise exposure. 2. The veteran's tinnitus is not related to any incident of his military service, including noise exposure. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §1110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See, too, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in October 2004, prior to the initial adjudication of his claims in the February 2005 rating decision at issue. The VCAA letter summarized the evidence needed to substantiate the claims and VA's duty to assist. It also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfies the first three "elements" of the notice requirement. In addition, the October 2004 letter stated: "If you have any evidence in your possession that pertains to your claim, please send it to us." This satisfies the fourth "element". During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 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. Id. at 486. Additionally, this notice must include mention that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In this case, the veteran received Dingess notice in March 2006, including as it relates to the downstream disability rating and effective date elements of his claims. The Board finds that all relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records, VA and private medical records and a report of VA examinations addressing the etiology of the claimed conditions - the dispositive issue. There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained. The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. In April 2006, the veteran indicated that he had no other information or evidence to give VA to substantiate his claims. In his notice of disagreement (VA Form 21-4238), dated in June 2005, the veteran argued that the February 2005 VA examination was inadequate because, as he implies, the examiner "already knew" the answers to the questions that were asked of him. The veteran requested another examination with a different examiner. Upon review, however, the Board notes that the February 2005 VA examiner reported medical histories, provided examination findings regarding the veteran's complaints, and provided the appropriate diagnoses. That an examiner's findings do not support the veteran's claim is not a reason to find an examination inadequate. Moreover, as a person without medical training, the veteran is not competent to comment on matters requiring medical expertise, such as the adequacy of a medical examination. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Accordingly, the Board rejects the veteran's contention as to the adequacy of the audiometric evaluation. The Board additionally notes that subsequent to the February 2005 VA examination the veteran submitted a private audiological evaluation and opinion in support of his claims. These opinions will be weighed to determine whether service connection is warranted. A remand for another VA examination is unwarranted. 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; 38 C.F.R. § 3.303(a). For certain chronic disorders, per se, 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, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. 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 the 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to Hickson element (1), a February 2005 VA audiological examination shows evidence of hearing loss of sufficient severity to meet the threshold minimum requirements of § 3.385 to be considered a disability according to this VA regulation. There also is a confirmed diagnosis of tinnitus. So Hickson element (1) has been satisfied as to both claims. With respect to Hickson element (2), in-service disease or injury, a review of the service treatment records covering the veteran's period of service reveals no evidence of hearing loss or tinnitus. The record reflects that the first reference to hearing loss was in May 2002, more than 31 years after the veteran was discharged from service. There is no objective clinical indication of hearing problems involving the ears prior to May 2002. However, notwithstanding the lack of medical evidence of ear disease during service, the Board believes that injury to the ears may have occurred during service. The veteran's DD Form 214 shows that his military occupational specialty (MOS) was field artillery. This type of MOS is consistent with exposure to noise. Hickson element (2) has therefore been satisfied. With respect to Hickson element (3), medical nexus, the question presented here is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the record on appeal contains medical opinions that have been submitted by the veteran or obtained by the RO. The February 2005 VA examiner opined, following a review of the claims file, that the veteran's hearing loss and tinnitus were less likely than not related to his military service. In December 2005, following a private evaluation, Dr. S.N. indicated that artillery noise in service was the major contributing factor in the veteran's hearing loss. In a February 2006 addendum, following review of Dr. S.N.'s opinion, the VA examiner reiterated that the veteran's hearing loss was unrelated to noise exposure in service. Clearly, there is a conflict in the medical evidence regarding the etiology of the veteran's hearing disorder and tinnitus, specifically whether the veteran's military service is implicated. By law, the Board is obligated under 38 U.S.C.A. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. See, e.g., Eddy v. Brown, 9 Vet. App. 52 (1996). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). After reviewing all the evidence of record, the Board finds that the preponderance of the medical evidence is against service connection for the veteran's hearing loss and tinnitus. There is no indication that Dr. S.N. had the benefit of review of the veteran's entire medical record in formulating his opinion. In addition, the VA examiner, as opposed to Dr. S.N., provided the rationale upon which he based his opinions that the veteran's hearing loss and tinnitus were unrelated to service. Specifically, the VA examiner noted that the veteran's 1971 separation examination from service showed normal hearing bilaterally, that the veteran was exposed to noise after separation from service (he reported post-service recreational noise from hunting from 1974 to 1979 and from 1992 to 1999), and that the veteran did not become aware of his hearing loss until between 1990 and 1995. In contrast, while Dr. S.N. acknowledged that there were other factors in the veteran's life that had contributed to his hearing loss, he did not provide a rationale as to why he felt artillery noise was the major contributing factor. Most notably, Dr. S.N. did not provide a reason why the veteran's hearing problems were not shown until several decades after his military service. Indeed, the VA examiner, in his February 2006 addendum, pointed out that Dr. S.N. failed to mention that the veteran's 1971 separation examination showed normal hearing. The veteran has asserted that his hearing loss is related to his military service. It is now well settled, however, that laypersons without medical training, such as the veteran, are not qualified to render medical opinions regarding matters, such as diagnoses and determinations of etiology, calling for specialized medical knowledge such as sensorineural hearing loss. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (2007) (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 opinion of the veteran on medical matters such as nexus are accordingly lacking in probative value, in regard to the hearing loss claim. The Court has determined that, for tinnitus specifically, a veteran is competent to present evidence of continuity of symptomatology. See Charles v. Principi, 16 Vet. App. at 374-75. As such, the veteran's lay contentions as to tinnitus represent competent evidence. That notwithstanding, the Board does not find these contentions to be credible. The veteran's June 1971 separation examination report reflects that the ears were "normal," and the veteran did not report any significant or interval history at that time. Moreover, he did not report tinnitus for more than 30 years following separation from service. The veteran's lay descriptions of tinnitus are thus too inconsistent to be given any degree of probative value, particularly as compared to the VA examination report and addendum of record. In short, for reasons expressed immediately above, Hickson element (3) has not been met with respect to either claim. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claims for service connection for hearing loss and tinnitus. The benefits sought on appeal are accordingly denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs