Citation Nr: 0814580 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-33 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran served on active duty from October 1961 to August 1962. This case initially comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision rendered by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Bilateral hearing loss disability did not manifest in service. 2. Bilateral hearing loss disability is not attributable to service. 3. Tinnitus was not present in service. 4. Tinnitus is not attributable to any incident of service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require 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 the Secretary that is necessary to substantiate the claim. As part of the 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. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA by letter dated in January 2005. Although letter provided adequate notice with respect to the evidence necessary to establish entitlement to service connection, it did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. However, the veteran was subsequently provided notice pertaining to these latter two elements by letter dated in March 2006, prior to the issuance of a supplemental statement of the case (SSOC). Although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In connection with the current appeal, appropriate examinations have been conducted, and available service and post service records have been obtained. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2007). Service connection for an organic disease of the nervous system, including sensorineural hearing loss, may be granted if manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may be granted for any disease 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) (2007). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1995). For a showing of 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). The threshold for normal hearing is from 0 to 20 decibels. Hensly v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes 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 (2007). The regulations provide that, in considering claims of veterans who engaged in combat during campaigns or expeditions, satisfactory lay or other evidence of incurrence or aggravation in such combat of an injury or disease, if consistent with the circumstances, conditions or hardships of such service, will be accepted as sufficient proof of service connection, even when there is no record of incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002). However, section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Id. Analysis Initially, the Board notes that the records do not show that the veteran engaged in combat with the enemy. The veteran's service personnel records do not show that he received any citations or awards for participation in combat with the enemy. See 38 C.F.R. § 3.304(f). Also, nothing in the veteran's statements establish that he participated in combat. Therefore, the provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. The veteran is seeking service connection for bilateral hearing loss and tinnitus disabilities. The veteran has alleged that his hearing loss and tinnitus are a consequence of service. Specifically, the veteran claims that his exposure to guns and explosives during service caused his conditions. Having reviewed the evidence pertaining to the veteran's claim, the Board concludes that service connection for bilateral hearing loss and tinnitus are not warranted. The veteran's service medical records are negative for any complaints, findings or diagnosis of tinnitus. In January 1960 and January 1961, acuity was 15/15 in each ear. On evaluation in September 1961, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 X 20 LEFT 15 15 15 X 30 On the separation evaluation in June 1962, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 X 25 LEFT 0 5 5 X 25 The veteran was afforded a VA compensation and pension examination in February 2005. During this examination, he reported a history of bilateral hearing loss.. The veteran reported noise exposure from gun fire and from armored personnel carriers while in service. It was reported that following service the veteran worked as a teacher and high school counselor, and that he was a member of the National Guard and was exposed to noise during that time. The evaluation showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 30 70 70 LEFT 5 10 20 65 65 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. During the examination, the veteran reported having tinnitus for many years. The veteran also reported that he could not relate the onset of the tinnitus to any specific event. Bilateral tinnitus was noted. The examiner also noted that the veteran's hearing was normal through 1000 Hertz in the right ear with mild to severe sensorineural loss of sensitivity from 2000 to 4000 Hertz. Regarding the left ear, the veteran's hearing was normal through 2000 Hertz with moderately severe sensorineural loss of sensitivity from 3000 to 4000 Hertz. After review of the veteran's claims file, the examiner opined that the veteran's hearing loss and tinnitus are not at least likely as not related to military service. In June 2006, the veteran's private physician, G.S.R., opined that the veteran's hearing loss is most likely secondary to his loud noise exposure in service. G.S.R. noted that the veteran had a history of chronic hearing loss ever since military service, approximately 35 to 40 years ago. The veteran reported to G.S.R. that his hearing loss started immediately after military service and has slowly worsened with time. In light of the above, the Board recognizes that the veteran has established a current hearing loss disability in accordance with VA regulation. See 38 C.F.R. § 3.385. The veteran's VA compensation and pension examination showed an assessment of bilateral hearing loss. The examination showed that the veteran's auditory thresholds at 3000 and 4000 were greater than 40 decibels in both ears. The veteran has also established a current tinnitus disability in that the compensation and pension examination revealed a current diagnosis of tinnitus. Because the veteran has established bilateral hearing loss and tinnitus disabilities, this case hinges on whether the veteran's disabilities are service related. In this case, the Board is presented with conflicting opinions regarding the etiology of the veteran's bilateral hearing loss. Private physician, G.S.R. has opined that the veteran's bilateral hearing loss is most likely secondary to his loud noise exposure in service. However, the VA examiner has opined that the veteran's hearing loss and tinnitus are not at least likely as not related to military service. Based upon the cumulative record, the Board has placed greater probative value on the opinion proffered by the VA examiner and finds against the veteran's claims. The VA examiner's opinion was reached after review of the veteran's claims file. The Board finds that the opinion of the VA examiner is consistent with the historic record and is more probative as to the origin of the veteran's hearing loss and tinnitus. Although G.S.R. opined that the hearing loss is most likely secondary to loud noise exposure in service, there is nothing in the file that suggests that G.S.R. reviewed the veteran's in-service medical records to reach this conclusion. Accordingly, the Board must find G.S.R. opinion to be unpersuasive as to the relation of the veteran's current hearing loss to service. The Board has also considered the statements made by the veteran linking his current bilateral hearing loss and tinnitus to in-service noise exposure. The Board is aware that the ability to perceive sound come to a layman through his senses. See Layno, supra. However, a layperson lacks the capacity to provide evidence that requires specialized knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). If the determinative issue involves medical causation or a medical diagnosis, competent evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). To the extent that the veteran has reported that his hearing loss and tinnitus started during service and that it continued. There is a remarkable lack of corrobative evidence within decades of separation from service. Although symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, in a merits context the lack of evidence of treatment may bear on the credibility of the evidence of continuity. See Savage v. Gober, 10 Vet. App. 488 (1997). The Board also notes that the veteran's statements regarding the onset of his tinnitus has varied throughout this appeal. The veteran reported to the VA examiner in February 2005 that he could not relate the onset of the tinnitus to any specific event. However, in June 2006 he specifically attributed the onset of his tinnitus to an in service event. As set forth above, the more probative evidence shows that the veteran's current bilateral hearing loss and tinnitus was not manifest during service or for many years thereafter. The veteran's assertions of bilateral hearing loss and tinnitus due to in-service noise exposure are not persuasive. Accordingly, service connection is denied. The preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus. Because there is no approximate balance of positive and negative evidence, the rule affording the veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002). See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). See also 38 C.F.R. § 3.102 (2007). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs