Citation Nr: 0814074 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 07-23 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from April 1943 to February 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal of an August 2006 decision of the Department of Veterans Affairs Regional Office (RO) in Indianapolis, Indiana which denied the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. The veteran was scheduled for a videoconference hearing in January 2008, but he failed to report for this hearing and provided no explanation for his failure to report. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2007). In April 2008, a motion to advance this case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (2007). FINDINGS OF FACT 1. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's currently diagnosed bilateral hearing loss and his military service. 2. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's currently diagnosed tinnitus and his military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active military service and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks service connection for bilateral hearing loss and tinnitus. In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the Veterans Claims Assistance Act of 2000. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of this notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in letters dated April 2006 and August 2007, including "evidence of a relationship between your disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in the above-referenced April 2006 and August 2007 VCAA letters. Specifically, these letters stated that VA would assist the veteran in obtaining relevant records from any Federal agency, including those from the military, VA Medical Centers, and the Social Security Administration. The April 2006 VCAA letter specifically noted that records from the VA medical center in Chicago had been associated with the claims folder. With respect to private treatment records, the April 2006 and August 2007 letters informed the veteran that VA would request such records, if the veteran completed and returned the attached VA Form 21-4142, Authorization and Consent to Release Information. The April 2006 VCAA letter informed the veteran that records from the Beltone Hearing Aid Service had been requested on his behalf. Both VCAA letters emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the originals]. The April 2006 and August 2007 VCAA letters specifically requested: "If there is any other evidence or information that you think will support your claim[s], please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us." This complies with the "give us everything you've got" requirement of 38 C.F.R. § 3.159(b), in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. After the veteran received additional notice via the August 2007 VCAA letter, his representative submitted a statement on his behalf which did not indicate the presence of any outstanding evidence and asked the Board to expeditiously proceed to a decision on the appeal. See the Informal Hearing Presentation (IHP) submitted in February 2008. Neither the veteran nor his representative has since indicated that additional evidence exists which has not already been obtained. It thus appears that the veteran has no additional evidence in his possession which would influence the Board's decision. The veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained that would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. There has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that each claim of entitlement to service connection consists of five elements: (1) veteran status [not at issue here]; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because each service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of each claim. Therefore, upon receipt of an application for service connection claims, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claims 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 each claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in a letter from the RO dated March 2006, as well as in the April 2006 and August 2007 letters, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letters as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations, and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, all three letters instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claims were received and when the evidence "shows a level of disability that supports a certain rating under the rating schedule." The veteran was also advised in the letters as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted, and reports of treatment while attending training in the Guard or Reserve. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the veteran's claimed bilateral hearing loss and tinnitus. In other words, any lack of advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. The veteran's claims of entitlement to service connection were denied based on Hickson elements (2) and (3). As explained above, the veteran received proper VCAA notice as to his obligations, and those of VA, with respect to those crucial elements. Because the Board is denying the veteran's claims, elements (4) and (5) remain moot. In short, the record indicates the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In the instant case, the Board finds reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his service connection claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. The evidence of record includes the veteran's service medical records, the veteran's statements, and the reports of VA and private medical treatment. The veteran was also afforded a VA examination in July 2006. The examination report reflects that the examiner reviewed the veteran's past medical history, recorded his current complaints, conducted an appropriate audiological examination, and rendered appropriate diagnoses and opinions. In the February 2008 IHP, the veteran's representative referred to the July 2006 VA examiner's statement that "[m]edical follow-up is recommended in order to address the veteran's complaint of dizziness." The Board notes that in making this statement, the examiner was identifying another problem unrelated to the appeal, dizziness or vertigo. Crucially, the examiner's comments contained no indication that follow-up was required for the hearing loss or tinnitus. Accordingly, the need for further medical examination with reference to the two issues on appeal is not indicated by the examination report or by any other evidence of record. The record indicates that the veteran is receiving Social Security benefits based on age; however, the duty to obtain records only applies to records that are "relevant" to the claim. See 38 U.S.C.A. § 5103A(b)(1); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). The veteran has not contended that he was awarded SSA benefits for his hearing loss or tinnitus, the disabilities at issue in this case. Moreover, as will be discussed below the crucial question in this case is the relationship between the veteran's military service and the two claimed disabilities. Such inquiry is beyond the scope of SSA. See Brock v. Brown, 10 Vet. App. 155, 161-2 (1997) [VA is not obligated to obtain records which are not pertinent to the issue on appeal]. There is no indication, then, that the SSA records would be relevant to these claims. Remanding the case to obtain such records would serve no useful purpose. As the Court has stated, VA's "duty to assist is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support the claim." See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); see also Counts v. Brown, 6 Vet.App. 473, 478-79 (1994). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with the provisions of the VCAA. The veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2007). He has retained the services of a representative. Further, as noted in the Introduction, he had an opportunity to testify at a videoconference hearing, but he failed to appear. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. Relevant law and regulations Service connection - in general Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 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 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Service connection - hearing loss For certain chronic disorders, including sensorineural hearing loss, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2007). For the purposes of applying the law 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, 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 38 C.F.R. § 3.385 (2007). Combat status Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, "[VA] shall accept as sufficient proof of service-connection...satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service... Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2007). However, the Court has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-523 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the veteran has a current disability or whether there was a nexus between the in- service event and the current disability. Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the veteran's claims. See 38 C.F.R. § 3.303(b) (2007). The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. Analysis Because hearing loss and tinnitus are in some ways related medically and because the outcome as to both issues involves the application of virtually similar law to identical facts, the Board will address the two issues together. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. In this case, it is undisputed that the veteran currently has bilateral hearing loss and tinnitus, as is evidenced by the July 2006 VA audiology examination. Hickson element (1) is, therefore, satisfied for the veteran's bilateral hearing loss and tinnitus claims. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury causing hearing loss and/or tinnitus, the Board will address disease and injury separately. Regarding the in-service incurrence of disease, the veteran's service medical records show that on the March 1943 entrance examination, the veteran's ears were normal and that his hearing was 15/15 bilaterally. The February 1946 separation physical examination recorded the same results with the veteran's ear condition reported as normal and his hearing reported as 15/15 bilaterally. The Board notes that the record does not reflect medical evidence demonstrating any manifestations of hearing loss during the one-year presumptive period after separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.3.09 (2007). The first diagnosis of hearing loss and tinnitus, in accordance with 38 C.F.R. § 3.385, was the July 2006 VA audiology examination. Accordingly, Hickson element (2) is not met with respect to disease. Regarding in-service injury, the veteran's journal indicates that in April 1945, his ship, the U.S.S. Panamint (AGC-13), engaged in battle with Japanese planes and shot down two of them. See the veteran's statement, received in May 2006. Official records corroborate that the veteran's ship was exposed to numerous kamikaze attacks off Okinawa in May and June 1945. Based on this evidence, the Board finds that combat status, and with it the presumptions of 38 U.S.C.A. § 1154, is established. Therefore, in-service incurrence of injury has been demonstrated and Hickson element (2) is satisfied. With respect to Hickson element (3), medical nexus, as was discussed in the law and regulations section above the provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) do not presumptively establish service connection for a combat veteran, nor do they provide medical nexus evidence; rather they relax the evidentiary requirements for determining what happened in service. See Libertine, supra. The Board must, therefore, determine whether the presumed in- service acoustic trauma resulted in the development of the veteran's bilateral hearing loss and tinnitus. The Board has carefully evaluated the medical evidence. There is only one competent medical nexus opinion of record, that being the report of the July 2006 VA audiological examination. The VA examiner's opinion was not favorable to the veteran's claim. Based on audiological testing and review of the veteran's file, including the August 2004 Beltone audiogram and the February 1946 service exit examination, the VA examiner determined that "the veteran's complaints of hearing loss and tinnitus are not at least as likely as not related to his military service." The Board observes that this medical opinion appears congruent with the evidence of record, which shows no complaints of hearing loss or tinnitus for many decade after the presumed acoustic trauma in service. The veteran acknowledges that the first time he sought treatment of any hearing problem was in 1999. See the veteran's statement, received May 2006. As noted above, the first diagnosis of hearing loss, in accordance with 38 C.F.R. § 3.385, was the July 2006 VA audiology examination. There is no competent medical evidence to the contrary. In that regard, the Board observes that while the September 2005 VA general outpatient treatment note and the July 2006 VA audiology examination did contain the veteran's reported history of in-service hearing loss, neither examiner related the veteran's current hearing loss or tinnitus to his military service. To the extent that the veteran and his representative contend that his current hearing loss and/or tinnitus is related to his military service, it is now well-established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis and etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also 38 C.F.R. § 3.159(a)(1) [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 statements offered by the veteran are not competent medical evidence and do not serve to establish medical nexus. See Voerth v. West, 13 Vet. App. 117, 119 (1999) [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus]. As noted in the Introduction, the veteran has been afforded ample opportunity to furnish medical nexus evidence to VA. No competent evidence of medical evidence has been submitted. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. The veteran appears to contend that his hearing loss and tinnitus began in service and continued thereafter. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, supporting medical evidence is required. See Voerth, 13 Vet. App. at 120-121 [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Specifically, there is no competent medical evidence that the veteran was diagnosed with or treated for bilateral hearing loss or tinnitus for more than fifty years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. In essence, the veteran's claims rest on his own recent statements that his current hearing loss and tinnitus are a direct result of in-service noise exposure. However, his statement is outweighed by the July 2006 audiology examination and the lack of objective evidence of hearing problems for decades after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also 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]. Continuity of symptomatology after service is therefore not demonstrated. Accordingly, Hickson element (3) is not met and the veteran's claims fail on that basis. In sum, for reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for hearing loss and tinnitus, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. The benefits sought on appeal are denied. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs