Citation Nr: 0813215 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-11 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Alex Crisafulli, Associate Counsel INTRODUCTION The veteran had active military service from January 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. FINDINGS OF FACT 1. The competent medical evidence fails to demonstrate that bilateral hearing loss is related to the veteran's active duty service. 2. The competent medical evidence fails to demonstrate that tinnitus is related to the veteran's active duty service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the veteran is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must request that the veteran provide any evidence in the veteran's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After a careful review of the claims folder, the Board finds that letters dated in August 2005 and March 2006 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The August 2005 letter advised the veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed disabilities and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claims. He was specifically told that it was his responsibility to support the claims with appropriate evidence. Finally the August 2005 letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The August 2005 letter was sent to the veteran prior to the December 2005 rating decision and the January 2006 notice of the rating decision. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendency of this appeal, on March 3, 2006 the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 letter was sent to the veteran providing such notice. Although this letter was not provided prior to the initial adjudication of his claims, the Board has concluded that a preponderance of the evidence is against the veteran's claims of entitlement to service connection for hearing loss and tinnitus. Any questions as to the appropriate disability rating or effective date to be assigned to these claims are therefore rendered moot. Id. The Board finds that VA also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007). In this regard, the veteran's service medical records are associated with the claims folder, as well as all relevant private treatment records. The veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding his claims. Finally, the Board notes that he was afforded a May 2006 VA examination in conjunction with his claims on appeal. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis I. Bilateral Hearing Loss The veteran asserts that he is entitled to service connection for bilateral hearing loss as such disability is the result of exposure to acoustic trauma during service. See January 2006 Notice of Disagreement; March 2006 Supplemental Statement of the Case Response. Specifically, in the veteran's original claim to the VA, he asserts that bilateral hearing loss first began in 1966 (his first year of service) during basic combat training. See July 2005 Veteran's Application for Compensation and/or Pension. To supplement this claim, the veteran reported frequent noise exposure to small arms, 50 caliber weapons, m-60 machine guns, and thrown grenades. See May 2006 VA examination. The veteran indicated that he has always worked in an office and that the only loud noises he has been exposed to occurred during the aforementioned basic training where he spent hours on the rifle and grenade range. See March 2006 Supplemental Statement. Therefore, he asserts his current hearing loss is a result of acoustic trauma exposure from his time in active service. While viewing the evidence in the light most favorable to the veteran in this case, the Board finds that a preponderance of the evidence is against the veteran's claim; as such, the appeal must be denied. Applicable law provides that service connection will be granted if it is shown that a veteran has a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air services. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection may also be granted for certain chronic diseases, such as sensorineural hearing loss, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. §§ 3.303, 3.304. Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999), Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385 (2007), which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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. Hensley v. Brown, 5 Vet. App. 155 (1993). The evidence in this case shows the veteran has bilateral hearing loss that constitutes current disability for VA purposes. The veteran presently experiences puretone decibel losses of 60 decibels or greater at the 3000 and 4000-Hertz ranges of both ears. See May 2006 VA examination report, p. 2. He has also been diagnosed with severe degree sloping sensorineural hearing loss in both ears. Id., p. 3. This evidence fulfills the requirements of the first element of the service connection test. In regards to the second element of the service connection test (medical evidence, or lay testimony, of an in-service incurrence or aggravation of an injury or disease), the Board recognizes that the veteran, as a lay witness, is competent to make statements concerning what comes to him through his senses, i.e., exposure to loud noise. See Layno V. Brown, 6 Vet. App. 465 (1994). As noted above, the veteran's original claim indicates that he has experienced hearing loss since 1966, the first year of his active service, coupled with the fact that he experienced noise exposure to service weapons and grenades during basic combat training. See July 2005 Veteran's Application; May 2006 VA Examination Report, p. 5. Again, the veteran is competent to make this statement and there is no evidence in the record that would come in direct conflict with his lay assertions. Furthermore, his statements are supported by his service record which notes he was authorized as an "Expert" in the use of a rifle. See July 1970 Service Record. The Board therefore concludes that there is sufficient evidence of an in-service injury, namely acoustic trauma. In regards to the third element of the service connection test (medical evidence of a nexus between current disability and in-service incurrence), the veteran's service medical records do not reflect any treatment or diagnoses pertaining to the veteran's hearing. There is also no record of the veteran complaining of hearing loss during his active service although the veteran's January 1966 enlistment examination contained elevated readings in the left ear at 500 and 4000 Hertz. In this regard, VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. See also Hensley v. Brown, 5 Vet. App. at 157 (The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). However, the veteran's January 1970 separation examination report indicated a normal clinical evaluation of the ears and no signs of experiencing, or having experienced, hearing loss. An audiogram report in the separation examination also did not show hearing loss for VA purposes. Hensley, supra. The veteran did not submit any other medical records as evidence of an in-service incurrence or aggravation of bilateral hearing loss, or evidence of hearing loss within one year of service separation. The lack of evidence of hearing loss during service or immediately following service is not fatal to the veteran's claim. Id. Rather, the Board must now turn to the issue of whether there is competent evidence which attributes post- service hearing loss to service. Id. See also 38 C.F.R. § 3.303(d). The record shows a February 2006 private audiology examination, performed by Dr. W. A., which suggests the veteran's present hearing loss could be a result of his active service. See February 2006 audiology examination report. Dr. A.'s examination, which did not include a review of the claims file, noted that the veteran had been wearing a hearing aid for the previous twenty years and that his hearing loss was noise induced and "likely service related." Id. In May 2006, the veteran was afforded a VA examination at the same office where his February 2006 private audiology examination was performed. Hearing loss disability as contemplated within 38 C.F.R. § 3.385 was demonstrated. The examining audiologist noted that the veteran reported acoustic trauma exposure secondary to basic combat training. The examiner also noted that the veteran's hearing loss was severe and noise related but that the information provided was inadequate to make a statement linking the disability to his time in active service. Dr. A., who performed the February 2006 private audiology examination, reviewed the examiner's report in conjunction with the VA examination, agreed with the findings contained therein, and stated that service connection for the veteran's hearing loss could not be made without resorting to speculation. The Board notes that the claims file was not available for review. Later, the claims file was sent to Dr. A. (along with his initial reports and audiologist's examination) in conjunction with his May 2006 VA examination, and after another review he noted that the May 2006 VA examination was accurate. See July 2006 VA Examination Addendum. The Board attaches significant probative value to this finding as it was made with a complete review of the claims file, including his February 2006 private opinion. See Prejean V. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) 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 the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). Here, Dr. A., once having had access and review of the claims file, modified his opinion from the February 2006 private audiology report that the hearing loss was "likely service related" and opined he could no longer confirm the etiology of the veteran's hearing loss without resorting to speculation. Thus, the Board finds the February 2006 private audiology examination to be of no probative value. In a previous statement, the veteran acknowledged his receipt of the VCAA and noted that he had no further information in support of his claim to submit at that time. See August 2005 Statement in Support of Claim. Therefore, the only medical evidence offered by the veteran in support of his assertion that his hearing loss was service connected was an opinion from Dr. A., who, at the time, had not reviewed the claims file. Upon review of the claims file, Dr. A. not only agreed with the VA audiologist that there was inadequate information to support service connection, he also changed his February 2006 opinion that the hearing loss is likely service related. An accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." See 38 U.S.C.A. § 5107(b), Alemany v. Brown, 9 Vet. App. 518 (1996). However, there must at least be a sufficiently definitive opinion on etiology to rise above the level of pure equivocality or uncertainty. See Winsett v. West, 11 Vet. App. 420, 424 (1998). Since the February 2006 audiology exam's finding that the veteran's hearing loss is "likely service related" has been refuted by the very person (Dr. A.) who gave the opinion and deemed by the Board to be non- probative, only the veteran's account that his hearing loss is connected to his service remains. And as a layman, he simply does not have the necessary medical training and/or expertise to determine the cause or etiology of his hearing loss. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Without the presence of any credible medical evidence of a nexus between the veteran's current disability and his active service, the Board finds that a preponderance of the evidence is against awarding service connection for bilateral hearing loss; as such, the appeal must be denied. II. Tinnitus In addition to bilateral hearing loss, the veteran also asserts that he is entitled to service connection for tinnitus secondary to in-service noise exposure. He contends that he first experienced tinnitus during basic combat training and it has continued to the present day. See March 2006 Supplemental Statement of the Case Response. However, after careful consideration of the evidence of record, the Board finds that a preponderance of the evidence is against awarding service connection for tinnitus. The Board has already determined that the veteran was exposed to acoustic trauma during his active service. However, acoustic trauma sustained in service, in and of itself, is not considered a disability for VA purposes; i.e. warranting service connection or compensation. Additionally, while the veteran has a current diagnosis of tinnitus (May 2006 VA Examination), his service medical records do not reflect any complaints, treatment, or diagnoses relating to this disorder. The first post-service evidence in the claim file referencing complaints of ringing in the ears appears to be the veteran's original claim for compensation dated in July 2005. Thus, the Board finds the critical question in this appeal turns upon whether the veteran's tinnitus is etiologically related to service. As with hearing loss, a February 2006 private audiology report from Dr. A. suggests that the veteran's tinnitus is noise induced and likely service related. However, this opinion was formulated absent consideration of the claims file. As above, when Dr. A. reviewed the May 2006 VA examination and had access to the claims file, he could not determine the etiology of the veteran's tinnitus without resorting to speculation. The veteran as a lay person is not qualified to determine the etiology of his tinnitus. See Espiritu, Supra. Thus, there is no definite opinion on record that can be relied upon to give an accurate determination as to the etiology of the veteran's tinnitus. The Court has determined that, particularly with respect to claims for tinnitus, the veteran is competent to present evidence of chronicity and continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The veteran's contentions, however, remain subject to a Board analysis of credibility. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192- 193 (1992). For the reasons discussed below, the Board finds that the veteran's assertions regarding the chronicity and continuity of tinnitus since service are not shown to be credible. The veteran's lay assertions of continuity of symptomatology are entirely uncorroborated by any objective evidence of chronicity or continuity of symptomatology of tinnitus after service. See 38 C.F.R. § 3.303(b). As discussed herein, neither a 1970 service separation examination report, nor any post-service evidence shows any record of tinnitus or complaints of ringing in the ears until the veteran's original July 2005 claim, more than 30 years after the veteran left active military service. This gap in the evidentiary record preponderates strongly against this claim on the basis of continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354 (1991). With regard to the 30 year evidentiary gap in this case between active service and the earliest record of tinnitus, the Board also notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury in service which resulted in chronic disability or persistent symptoms thereafter. 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). Additionally, the Board observes that it may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the maladies at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings of tinnitus for decades after the period of active duty is itself evidence which tends to show that his current tinnitus did not have its onset in service or for many years thereafter. The veteran contends that he first experienced tinnitus during basic combat training as a result of acoustic trauma sustained therein, and that it has remained problematic from basic combat training until the present time. See July 2005 Claim. The Board acknowledges, and has no reason to doubt, the veteran's assertion that he was exposed to acoustic trauma in service. However, his contentions that his tinnitus has been continuous since such trauma through the present day were first put on record more than 30 years after service. The Board acknowledges that the veteran's February 2006 private audiology examination reports he had been wearing a hearing aid for the past 20 years. (See February 2006 Examination) However, even if the Board were to assume that his medical records demonstrated tinnitus at this point, this still leaves over a ten year gap upon his exit from the service to any discernable evidence regarding the veteran's hearing loss or tinnitus. The Board notes that the veteran's memory may have been dimmed with time and that there remains the possibility that his current tinnitus is not related to the tinnitus he experienced during service. The Board finds that contemporaneous evidence from the veteran's military service, which reveal no tinnitus on separation, to be far more persuasive than the veteran's own recent assertions to the effect that he had tinnitus in service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Such records are more reliable, in the Board's view, than the veteran's unsupported assertion of events now over three decades past. In this case, no probative competent medical evidence exists of a relationship between currently diagnosed tinnitus and any continuity of symptomatology asserted by the veteran. Rather, the competent and credible evidence of record, particularly the service medical records, the May 2006 VA examination, and the July 2006 addendum, preponderates against a finding that the veteran has tinnitus related to service or any incident thereof, and accordingly service connection for tinnitus, and as such the appeal, must be denied. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs