Citation Nr: 0813912 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 05-07 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alex Crisafulli, Associate Counsel INTRODUCTION The veteran had active military service from March 1945 to September 1948; and again from September 1950 to July 1951. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2004 rating decision of the Regional Office (RO) of the Department of Veterans Affairs in St. Louis, Missouri. The BVA notes that during the appeals process, the claims folder was transferred to the Wichita, Kansas RO. A motion to advance this case on the Board's docket was received by the Board on January 17, 2008. This motion was granted by the Board on April 7, 2008 due to the veteran's advanced age. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). It is unclear in a January 2007 statement whether the veteran is raising claims of entitlement to service connection for the residuals of a right ankle sprain, a back disorder, and a stomach disorder. These matters are referred to the RO for clarification and appropriate action. FINDINGS OF FACT 1. The competent medical evidence of record does not attribute the veteran's bilateral hearing loss to service and such was not manifested within one year of separation from service. 2. The competent medical evidence of record 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, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 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, 1131, 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 a letter dated in August 2004 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 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 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. In Pelegrini II., the United States Court of Appeals for Veterans Claims (Court) held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction (AOJ) decision. Because VCAA notice in this case (August 2004 letter) was accomplished prior to the initial AOJ denial of the claim, the timing of the notice does comply with the express requirements of the law as found by the Court in Pelegrini II. 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. Furthermore, while notice was not provided in the above notice letter, or in any other correspondence, that a disability rating and effective date would be assigned in the event of award of the benefits sought, this omission is not prejudicial to the veteran. Indeed, because the veteran's claims of service connection are denied in the instant decision, VA's failure to provide notice as to the assignment of a disability rating and/or effective date has no adverse impact on the veteran. 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. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i)(2007). There is no indication in the record that any additional evidence relevant to the issue decided herein, is available and not part of the claims file. The Board notes that a request for medical records sent to Dr. S.P.L. concerning a 1964 visit was met with a negative reply stating they had no records pertaining to the veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The veteran was sent to this doctor by his employer, Goodyear Tire Plant, and noted that he contacted Goodyear concerning these particular medical records and was told they could be provided but he has yet to receive them. See January 2006 Letter From Veteran. The Board notes the veteran is aware he can submit pertinent evidence in his possession to VA. The Board also notes that the veteran has not provided VA with enough information to identify and locate the records referenced by the veteran from Goodyear. 38 C.F.R. § 3.159(c)(3). The Board acknowledges that the veteran has not had VA examinations specifically for his claims for bilateral hearing loss and tinnitus. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Regarding the claims of bilateral hearing loss and tinnitus, an examination is not needed because the veteran's service medical records are absent for evidence of findings or complaints related to a decrease in bilateral hearing or tinnitus. Further, no competent evidence has been submitted to indicate that the veteran's hearing loss or tinnitus is associated with an established event, injury, or disease in service or during the presumptive period. Accordingly, it was not necessary to obtain a medical examination or medical opinion in order to decide the claims for bilateral hearing loss or tinnitus in this case. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). 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 he claims that such disability is the result of exposure to acoustic trauma during service. See December 2004 Notice of Disagreement; June 2005 Letter to Regional Office. Specifically, in the veteran's claim to the VA, he asserts he was trained on, fired, and exposed to the following: M1 garand rifle, M1 carbine, .45 caliber pistol, M2 carbine, and the M105 howitzer. See June 2004 VA Form 21- 526. Although he reportedly did not seek medical treatment at the time, he also claims on one occasion to have fired a Russian "Burp" gun which rendered him unable to hear for the following two days. See Notice of Disagreement; January 2005 Appellant Statement. The veteran also alleges that in 1950 during the Korean Conflict, he went overseas as an infantry replacement, and that he traveled around Korea and was subject to gunfire from nearby artillery units. He has stated that he received a Combat Infantryman Badge (CIB) when disembarking a ship and returning home in July 1951; however, that medal reportedly was lost. 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, 1131 (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 for VA compensation purposes 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. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The evidence in this case shows that 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 April 2005 Audiology Examination, p. 2.; August 2004 VA Audiology Consultation. His hearing loss is listed as moderate to severe in his right ear through the speech frequencies while his left ear ranges from mild to moderately severe through the same range. Id. 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 when a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Board notes further, that for a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability; the appellant is still required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent medical evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Also, 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 was exposed to heavy gunfire during his active military service. See June 2004 Veteran's Application for Compensation; January 2005 Appellant Statement. The veteran's WD AGO Form 53 from his period of service from December 1945 to September 1948 indicates that the veteran's military occupational specialty was that of a motion picture projectionist; one year, five months of foreign service is noted. WD AGO Form 100 indicates that he worked as a motion picture projectionist for 33 months. The veteran's DD 214 from his period of service from September 1950 to July 1951 indicates that he was assigned to an infantry unit; seven months, 23 days of foreign service was reported. No medals or citations particular to combat are reported on either form. However, to the extent that the veteran's complete service personnel records are unavailable and there is some evidence that the veteran has a expert infantryman badge- carbine M1 noted on WD AGO 53 dated in 1948, and was assigned to an infantry unit during his last period of service, the Board will concede that, while the record does not establish that the veteran is a combat veteran, the veteran's assertions of in-service exposure to noise trauma are competent and credible and are consistent with 38 U.S.C.A. § 1154(a). The Board therefore concludes that there is sufficient evidence of record to establish an in-service incurrence, namely exposure to acoustic trauma. However, for service connection to be granted, competent medical evidence still must show that the veteran has a current chronic disability that is medically attributed to service. As noted in the duty to assist section above, the Board notes that the veteran first reported seeking treatment for his hearing loss in 1964, approximately 13 years after his discharge from service. The records from this visit have not been able to be produced. Concerning the large evidentiary gap in this case between active service and the earliest record of hearing loss, 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). The veteran's spouse stated she did not recall noticing any hearing loss upon the veteran's return from service in 1951. See January 2005 Statement of Spouse. 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). The lack of any objective evidence of continuing complaints, symptoms, or findings of hearing loss for over a decade after the period of active duty is itself evidence which tends to show that his current hearing loss may not have had its onset in service or for many years thereafter. Furthermore, the record does not contain competent medical evidence linking the veteran's current hearing loss to service. 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 post-service medical records do not reflect any medical nexus between the veteran's current hearing loss and his exposure to acoustic trauma during active service. Neither the veteran's April 2005 audiology examination, nor his August 2004 VA audiology consultation linked his current hearing loss to his time in active service. These records also made no mention that the veteran's hearing loss began within one year of service separation. As such, the Board finds that service connection for sensorineural hearing loss on a presumptive basis is not warranted. 38 U.S.C.A. §§ 1112, 1113. The veteran visited a physician in December 1996 concerning his hearing loss. Hearing loss disability as contemplated within 38 C.F.R. § 3.385 was demonstrated. See December 1996 Audiology Examination. The records state that the veteran had significant bilateral, roughly symmetrical, downward sloping sensorineural loss. Id. It is also noted that the veteran's hearing loss was of much greater degree and extent than the median for his age and gender. Id. The veteran's history is noted for "extensive noise exposure" from sport shooting, working with power tools, 30 years of industrial work, and his 6 years in the military. Id. The private examiner did not provide an opinion as to the etiology of the veteran's hearing loss. The veteran was given an audiogram in August 2004. Again, significant bilateral, roughly symmetrical, downward sloping sensorineural loss was reported. See August 2004 VA Audiology Consultation. His gunfire exposure during military service and his post war noise exposure were each noted. Id. The examiner did not provide an opinion as to the etiology of the veteran's hearing loss. The veteran was seen by VA again in April of 2005 with complaints of decreased hearing. See April 2005 VA Audiology Consultation. The veteran was given another audiogram, and again, the examiner did not provide an opinion as to the etiology of the veteran's hearing loss. As noted, the record documents extensive post-service noise exposure. The veteran engaged in sport shooting, used power tools as a home hobby, and worked 30 years of industrial work at Goodyear Tire Plant. See December 1996 Audiology Examination; August 2004 VA Audiology Consultation. The Board notes that the veteran reported that with respect to his post-service noise exposure, running a drill press or lathe, or doing welding was not very noisy. He also stated that at Goodyear, he spent a lot of time in the office as a maintenance supervisor, and when out in the plant some of the machines were noisy but were within government guidelines for noise. The veteran reported further that that while after service he did do some target shooting, he used hearing protection. See VA Form 9, received in February 2005. Nonetheless, the record contains no competent medical evidence attributing the veteran's hearing loss to his military service. The veteran has expressed a belief, including in his June 2005 letter to VA that his hearing loss is related to his service. Additionally, a lay statement from the veteran's spouse has been submitted on behalf of the veteran. The veteran's spouse indicated the veteran has a hard time hearing and that she will accompany him to situations where it is important that information is heard. See January 2005 Statement of Spouse. The Board notes that the veteran and other persons can attest to factual matters of which they had first-hand knowledge, e.g., experiencing pain in service and witnessing events. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, neither the veteran nor his spouse has been shown to possess the requisite skills necessary to be capable of making medical conclusions. Thus, their statements do not constitute competent medical evidence and lack probative value. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Without the presence of any credible medical evidence of a nexus between the veteran's current hearing loss 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. 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 conceded 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 tinnitus disability (August 2004 VA Audiological Consultation), 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 June 2004. As above, the veteran visited a private physician in December 1996 concerning his hearing loss. However, the report from that visit shows no sign of tinnitus. In fact, the report states that the veteran explicitly denied tinnitus. See December 1996 Examination. Thus, the Board finds the critical question in this appeal turns upon whether the veteran's tinnitus is etiologically related to service. When the veteran was examined in August 2004, he reported periodic bilateral ringing in the ears but no determination of its etiology was given. As previously discussed, the veteran as a lay person is not qualified to determine the etiology of his tinnitus. See Espiritu. Thus, there is no 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). Here, the veteran not only fails to put forth any evidence of chronicity and continuity of symptomatology of his present tinnitus, he denied the presence of tinnitus in 1996. Tinnitus is not mentioned in any of his letters to VA on record. And, there are no lay statements from other parties in the record regarding the veteran having a history of tinnitus. The veteran is credible to report tinnitus, but he is not competent to relate his tinnitus to his time in active service. In the absence of any competent medical evidence to the contrary, the Board finds that service connection for tinnitus is not warranted. In this case, no probative competent medical evidence of record provides a relationship between the veteran's current tinnitus and his military service. Accordingly, service connection for tinnitus, and as such the appeal, must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 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