Citation Nr: 0814820 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 07-14 141 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from November 1945 to November 1949. The present matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision in which the RO, inter alia, denied the veteran's claims for service connection for tinnitus, for hearing loss, and for a bilateral foot disability. In September 2006, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2007, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2007. In April 2008, a Deputy Vice-Chairman of the Board granted the veteran's motion to advance this appeal on the Board's docket, under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. Tinnitus was not noted in service or for many years thereafter, and there is no medical evidence or opinion of a even suggesting a medical nexus between any current tinnitus and service. 3. Although the veteran has alleged experiencing in-service noise exposure, there is no objective evidence of hearing loss for many years after service, and the only competent, probative opinion to address the question of whether there exists a nexus between alleged in-service noise exposure and the veteran's hearing loss weighs against the claim. 4. Although there is evidence of depressed arches in service, there is no medical evidence or opinion to even suggest that there exists a medical nexus between current bilateral foot disability and service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. The criteria for service connection for hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2007). 3. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (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 her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in September 2005 and March 2006 pre-rating letters, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claims for service connection for tinnitus, for hearing loss, and for a foot disability, as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. The September 2005 pre-rating letter-which meets the first three of Pelegrini's content of notice requirements-also meets the VCAA's timing of notice requirement. While the veteran has not explicitly been advised to provide any evidence in his possession that pertains to his claims, the September 2005 letter informed the appellant that he should send the RO any medical reports and treatment records pertinent to his claimed conditions. Given these instructions, the Board finds that the veteran has, effectively, been put on notice to provide any evidence in his possession that pertains to these claims. Accordingly, on these facts, the RO's omission is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). The Board points out that a June 2007 post-rating letter RO informed the veteran how disability ratings and effective dates are assigned, as well as the type of evidence that impacts these determinations. However, the timing of this notice is not shown to prejudice the veteran. As the Board's decision herein denies the claim for service connection, no disability rating or effective date is being assigned; hence, there is no possibility of prejudice under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records; post-service private medical records; outpatient treatment records from the VA Medical Centers (VAMCs) in East Orange and Lyons, New Jersey, and from the VA clinic in Trenton, New Jersey; and reports of VA examinations. Also of record and considered in connection with these claims are various written statements provided by the veteran and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with these claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In adjudicating a claim for benefits, the Board must determine whether a preponderance of the evidence supports the claim or whether all of the evidence 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 must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. Tinnitus Service medical records reflect no complaints, findings or diagnosis of tinnitus during the veteran's period of service. His November 1949 discharge examination revealed no significant abnormalities regarding his hearing and his ears. Post-service medical evidence also reflects no findings or diagnosis of tinnitus after service. The February 2006 VA examiner notes that the veteran denied tinnitus in both ears, although a July 2006 private medical record, dated only months later, reveals that the veteran complained of chronic ringing only months later. However, the private doctor made no findings or diagnosis of tinnitus in the summer of 2006. The Board points out that tinnitus is the type of disorder associated with symptoms that are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002), the Court determined that Hence, even if, in the absence of any specific finding or diagnosis of tinnitus in the medical records, the Board were to accept as credible the veteran's assertions that he currently has tinnitus, the claim for service connection would still have to be denied on the basis of nexus to service. As noted above, there is no evidence of complaints of tinnitus until many years after discharge from service. The Board points out that the passage of so many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This is especially so here, as the veteran reported post-service occupational noise exposure as a construction laborer for 25 years during his February 2006 VA examination. Furthermore, there is no medical evidence or opinion even suggesting a relationship between any current tinnitus and service, and nether the veteran nor his representative has presented or identified any such existing medical evidence or opinion. Te Board veteran nor his representative has presented, identified, or even alluded to the existence of any evidence of a medical nexus between the claimed tinnitus and his military service. B. Hearing Loss Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 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 veteran asserts that his exposure to fire from five-inch guns while with the Navy during training and maneuver exercises while in service resulted in hearing loss. His service personnel records and his November 1949 report of medical examination indicate that he served aboard ship as a steward. Service medical records reflect no complaints, findings, or diagnosis of hearing loss in either ear during active service. The report of his November 1949 discharge examination reflects that the veteran's hearing in both ears was a normal 15/15 on the whispered voice test. The Board notes, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Post-service medical records reflect little evidence of hearing complaints. An October 1991 VA examiner noted there was no evidence of hearing loss then and that the veteran's ears were normal. On VA physical examination in May 2005, the veteran was found to have impacted cerumen in both ears and an August 2005 VA medical record shows that wax was removed from his ears and that he complained of deafness. During a VA audiological evaluation in February 2006, the veteran complained of difficulty hearing out of both ears. He attributed his hearing loss to his exposure to fire from five-inch guns during training and maneuver exercises in the Navy when hearing protection devices were not provided. He reported occupational noise exposure as a construction laborer for 25 years, especially from a motorized pallet used to transport building materials, and that hearing protection was not utilized in this job. The veteran indicated that he was employed later on as a custodian in housekeeping without noise exposure. He denied any recreational noise exposure, a history of otalgia, vertigo or a family history of hearing loss. At that time, audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 50 45 LEFT 30 40 40 45 50 Speech recognition scores on the Maryland CNC Word List were 94 percent in both ears. The VA examiner noted that the veteran had normal tympanometry for both ears and diagnosed mild sensorineural hearing loss through 2,000 Hertz with moderate hearing loss through 4,000 Hertz in both ears. July and August 2006 private medical records from B.L.M., M.D., F.A.C.S., indicate that the veteran complained of gradual continuation of hearing loss that had become more of an impairment. On examination, the veteran heard a normal conversation in a quiet, closed room. Complete cerumen impaction on the left was removed; otherwise, his tympanic membranes were normal. The veteran had difficulty repeating words during an initial audiogram which was redone several weeks later. Dr. B.L.M. then diagnosed a moderate to severe sensorineural hearing loss with a speech reception threshold level of 60 decibels and discrimination scores at 72 percent for the right ear and 84 percent for the left ear. It was noted that the veteran could benefit from use of hearing aids. As indicated above, he post-service evidence supports a finding of current hearing loss in each ear to an extent recognized as a disability, as defined by 38 C.F.R. § 3.385. However, the veteran's claim for service connection for hearing loss must be denied because the competent, probative evidence establishes that there is no medical nexus, or relationship, between this disability and the veteran's period of service. Even if, based on the veteran's service aboard ship, the Board were to accept, as credible, the veteran's assertions of in-service noise exposure, there is no evidence any complaints, findings, or diagnosis of hearing loss until more than 50 years after the veteran's service, and the only competent opinion to address the etiology of the veteran's hearing loss weighs against the claim. A February 2006 VA examiner considered the veteran's complaints and description of noise exposure, both during and after service, and the evidence in the claims file. However, after examining the veteran, the examiner concluded that the veteran's military noise exposure was not a contributing factor in his overall hearing loss. The Board finds such opinion probative of the medical nexus question, based as it was, on both examination of the veteran and consideration of his documented medical history and assertions. Hence, the only competent, probative opinion to address the relationship between the veteran's current hearing loss and service weighs against the claim, and neither the veteran nor his representative has identified, presented, or alluded to the existence of a contrary medical opinion-i.e., one that, in fact, establishes a relationship between hearing loss and service. C. Bilateral Foot Disability First addressing the question of current bilateral foot disability, the Board notes that an October 2005 VA examiner diagnosed atrophy of the fat pads and onychomycosis, both secondary to exposure to the cold. X-rays taken in October 2005 at VA do not show evidence of a frostbite injury and no significant degenerative changes were noted. While this evidence supports a finding of current bilateral foot disability, this claim must, nonetheless, be denied on the basis of medical nexus. Although the veteran has asserted that his feet were exposed to the cold in service during the winter of 1945, the Board finds that there in no evidence in the service personnel records or service medical records to support this assertion. The veteran's active military service did not begin until November 1945. Service medical records show that he was diagnosed with depressed arches before he entered active duty. Subsequent service medical records, however, fail to show any complaints of or treatment for any foot problems. The report of his November 1949 discharge examination shows no significant abnormalities for the feet. Post service, there are no records of treatment by private doctors or VA personnel related to his feet and there is no medical evidence of a foot disability for many years after service. In fact, an October 1991 VA examiner noted that the veteran's musculoskeletal system was then normal and no evidence of frostbite, atrophy of foot pads or onychomycosis was noted. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson, 230 F.3d at 1333. In this case, more than 50 years elapsed from the veteran's discharge from service until medical records in the claims file show evidence of a current bilateral foot disability. Further, there is no medical evidence opinion that there exists a nexus between any current bilateral foot disability and service, and neither the veteran nor his representative have presented or identified any such existing evidence or opinion. D. All Claims In addition to the medical evidence, in adjudicating each claim, the Board has considered the veteran's assertions advanced by him and by his representative, on his behalf; however, none of this evidence provides a basis for allowance of the claim on appeal. However, to whatever extent that the veteran and his representative are attempting to establish a medical nexus between service and each claimed disability, the Board points out that matters of etiology are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the veteran and his representative are laypersons not shown have the appropriate medical training or expertise, neither is competent to render a probative opinion on the medical matter on which each claim turns. See Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claims for service connection for tinnitus, for hearing loss, and for a bilateral foot disability must be denied. In reaching each conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for tinnitus is denied. Service connection for hearing loss is denied. Service connection for a bilateral foot disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs