Citation Nr: 0813538 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-29 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1965 to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for bilateral hearing loss, tinnitus, and a psychiatric disorder to include post- traumatic stress disorder (PTSD). The veteran had also initiated an appeal of denial of service connection for a psychiatric disorder. An August 2007 rating decision granted service connection for such disability, and that matter is not before the Board. In February 2008, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the veteran's claims file. At the hearing, the undersigned granted the veteran's request that the case be held in abeyance for the submission of additional evidence. Additional evidence has been received with a waiver of initial RO consideration. FINDINGS OF FACT 1. A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the veteran's current bilateral hearing loss disability is related to an event, injury, or disease in service. 2. Tinnitus was not noted in service, and the preponderance of the evidence is against a finding that the veteran's current tinnitus is related to his service or to any event therein. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2007). 2. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 VCAA notice 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 his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A November 2004 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claims. He has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), a March 2006 letter informed the veteran of disability rating and effective date criteria. The veteran's service medical records (SMRs) are associated with his claims file, and pertinent treatment records have been secured. The RO arranged for a VA examination in July 2007. The veteran has not identified any pertinent evidence that remains outstanding. At the videoconference hearing he was advised specifically of what was still needed to establish entitlement to the benefits sought, and was granted an abeyance period to submit such evidence. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Factual Background The veteran's SMRs are silent for complaints, findings, treatment or diagnoses relating to bilateral hearing loss or tinnitus. Audiometry at the time of his service entrance examination in July 1965 revealed puretone thresholds, in decibels, were: Hertz 500 1,000 2,000 3,000 4,000 6,000 Right Ear -5 (10) -5 (5) -5 (5) 5 (15) 10 (15) 10 (20) Left Ear -5 (10) -5 (5) -5 (5) 0 (10) 15 (20) 15 (25) [The figures in parentheses represent conversions of audiometry reported in ASA values to ISO (ANSI) units, and are provided for data comparison purposes.] On July 1967 service separation examination audiometry, puretone thresholds, in decibels, were: Hertz 500 1,000 2,000 3,000 4,000 6,000 Right Ear 5 0 5 n/a 10 n/a Left Ear 5 5 5 n/a 10 n/a The veteran's July 1967 report of medical history was silent for current or past hearing loss of either ear, and silent as to tinnitus. The veteran's service personnel records show that from December 1965 to December 1966 he was stationed in Vietnam; his service occupational specialty was equipment storage specialist. A September 2002 health summary from Ft. Belknap Health Center is silent for complaints, findings, treatment, or diagnoses of bilateral hearing loss or tinnitus. A statement from the veteran's spouse received in October 2002 mentions that he is not able to hear as well as he used to. VA outpatient treatment records from February 2004, November 2004 to December 2005, and July 2006 to August 2007 are silent for any findings, treatment, or diagnoses of bilateral hearing loss or tinnitus. In November 2005, the veteran reported a history of hearing loss and tinnitus. Audiometry on July 2007 VA audiological evaluation revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 55 85 LEFT 30 40 40 55 80 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 96 in the left ear. Mild to severe bilateral sensorineural hearing loss was diagnosed. The veteran reported exposure to helicopters, artillery, and gunfire noise in service. Postservice occupational noise exposure included mining and construction work. Environmental noise exposure included ATVs, 4-wheelers, power tools, chainsaws, tractors, and guns. He also reported experiencing tinnitus beginning in the 1990s while doing construction work. After reviewing the claims file, and noting that the veteran had normal hearing prior to service and upon separation from service, the examiner opined, "It is not as likely that [the veteran's] hearing loss is service related due to exiting the service with normal hearing. It is not as likely that [his] tinnitus is service related since he indicated that tinnitus started in the 1990's while working construction. [His] hearing loss and tinnitus is likely due to physiological, age, occupational, and/or recreational factors following the service." At his February 2008 videoconference hearing, the veteran testified that during service he supplied helicopters with fuel, ammunition, and artillery rounds; as a result, he was exposed to noise from helicopters, artillery, round fire, small arms fire, and incidents of incoming mortar fire and rocket fire. He stated that, after service, he could not hear as well as before. Also, his postservice noise exposure included construction work, which had the same effect as being around helicopters. Evidence received at the Board in April 2008, with a waiver of RO consideration, shows that the veteran has hearing loss; it does not address the matter of a nexus between the veteran's hearing loss or tinnitus and his service. C. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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(d). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Bilateral hearing loss Service incurrence or aggravation of organic disease of the nervous system (to include sensorineural hearing loss) may be presumed if such is manifested to a compensable degree within a year of a veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. For the purpose 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, 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. It is not in dispute that the veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. Because he served supplying helicopters with fuel and ammunition, it may be conceded that he likely was exposed to noise trauma in service. What he must still show to establish service connection for his hearing loss is that the current disability is related to the noise exposure in service. There is no competent evidence in the record that the veteran's current hearing loss disability is indeed related to his service. Significantly, the veteran's SMRs, including his service separation examination report, do not mention hearing loss. Consequently, service connection for bilateral hearing loss on the basis that such disability became manifest in service and persisted, is not warranted. As there is no competent evidence that sensorineural hearing loss was manifested in the first post-service year, there is no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions (for sensorineural hearing loss as an organic disease of the nervous system). Furthermore, the record includes no competent (medical) evidence that relates the veteran's current bilateral hearing loss to his active service. The only medical opinion in the record that specifically addresses this matter, the report of the July 2007 VA audiological evaluation, is to the effect that the veteran's bilateral hearing loss is not related to service (and specifically noise exposure therein), but is likely due to physiological, age, occupational, and/or recreational factors following his service. The examiner also based his opinion on the fact that the veteran had normal hearing upon separation from service, and significant postservice occupational and environmental noise exposure. As this opinion was by an audiologist (who would be qualified to provide it), was based on a review of the record, and included an explanation of the rationale for the opinion, it has substantial probative value. With the additional evidence received at the Board after the hearing (which shows hearing loss disability but does not bear on the etiology of the hearing loss), the veteran's representative presented an argument that the VA opinion is inadequate because it does not include an explanation of rationale. The Board finds otherwise. In noting that the veteran had normal hearing on service separation, and postservice occupational and recreational noise exposure, and identifying the more likely intercurrent causes for the veteran's hearing loss, the examiner provides ample rationale for the opinion offered. Because there is no competent evidence to the contrary, the Board finds the opinion persuasive. The veteran's own statements relating his current bilateral hearing loss to noise exposure in service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The preponderance of the evidence is against a finding of a nexus between the veteran's current bilateral hearing loss and his service/noise trauma therein. Consequently, the preponderance of the evidence is against his claim. In such a situation, the benefit of the doubt doctrine does not apply; the claim must be denied. Service connection for tinnitus The veteran claims, in essence, that his tinnitus is related to his service/noise trauma therein. A November 2005 VA outpatient treatment record shows that he reported a history of tinnitus. On July 2007 VA examination, he explained that his tinnitus began during the 1990s while he was engaged in construction work. It is not in dispute that the veteran has tinnitus as such disability was noted in a postservice treatment record and on VA audiological evaluation. As was noted above, it is also not in dispute that he likely was exposed to noise trauma in service. What he must still show to establish service connection for his tinnitus is that such disability is related to his service/noise exposure therein. There is no competent evidence in the record that suggests there is such a nexus. The veteran's SMRs, including his service separation physical examination, contain no mention of tinnitus. Consequently, service connection for tinnitus on the basis that such disability became manifest in service and persisted is not warranted. The earliest documentation of tinnitus of record is the November 2005 VA outpatient treatment record. The July 2007 VA audiological evaluation is the only medical opinion in the record that specifically addresses whether the veteran's current tinnitus is related to his active duty service, and the noise exposure therein The examiner determined that veteran's tinnitus was most likely due to physiological, age, occupational, and/or recreational factors following his service. This was based on the veteran's personal account that his tinnitus began in the 1990s while doing construction work. Therefore, the examiner opined that, "It is not as likely that [the veteran's] tinnitus is service related." As this opinion was based on a review of the record, and included an explanation of the rationale for his opinion (including a more likely nonservice-related etiology for the tinnitus), it has substantial probative value. And because there is no competent evidence to the contrary, the opinion is persuasive. The veteran's own statements relating his tinnitus to noise exposure in service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical etiology. See Espiritu, supra. The preponderance of the evidence is against a finding of a nexus between the veteran's tinnitus and his service/noise trauma therein, and thus against his claim. Consequently, the benefit of the doubt doctrine does not apply and the claim must be denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs