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