Citation Nr: 0814907 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-02 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from July 1943 to January 1946. This case comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision from the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the claims on appeal. The veteran's motion to advance this case on the docket due to advanced age was granted by the Board in April 2008. See 38 U.S.C.A. §7107 (West 2002 & Supp. 2007); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. There is no competent medical evidence showing the veteran's bilateral hearing loss is related to service, to include as due to it being manifested to a compensable degree within one year following the veteran's discharge from service. 2. There is no competent medical evidence showing the veteran's bilateral tinnitus is related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 2. Bilateral tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In the present case, the veteran's claim on appeal was received in January 2005. Prior to the claim being denied in April 2005, a duty to assist letter was issued by the RO in February 2005. This letter provided initial notice of the provisions of the duty to assist as pertaining to entitlement to service connection, which included notice of the requirements to prevail on these types of claims, of his and VA's respective duties, and he was asked to provide information in his possession relevant to the claims. Additional VA notice was sent in April 2006. The duty to assist letters, specifically notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service medical records were previously obtained and associated with the claims folder. Furthermore, VA and private medical records were obtained and associated with the claims folder. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination addressing these issues was conducted in March 2005. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The veteran was provided such notice in the letter of April 2006. II. Service Connection To establish service connection, the evidence must show that the disability at issue resulted from a disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002, and Supp. 2007); 38 C.F.R. § 3.303 (2007). The Board also points out that sensorineural hearing loss (SNHL) is an organic disease of the nervous system. Therefore, service connection is presumed if evidence shows that sensorineural hearing loss became manifest to a compensable degree (10 percent) within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Generally, to prove service connection, a claimant must submit (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). With respect to the first element of a current disability, before service connection may be granted for hearing loss, that loss must be of a particular level of severity. For the purposes of applying the laws administered by the 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 threshold 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. Even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). In the case of 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 the 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) (West 2002); 38 C.F.R. § 3.304(d) (2007). Turning to the facts of this case, the veteran's service medical records are silent to any reported hearing or ear problems. The veteran's entrance examination dated in July 1943 indicated that he had normal hearing of 15/15 with no defects noted, and his separation examination dated January 1946 indicated that he had normal hearing of 15/15 with no defects noted. The veteran's DD Form 214 reflects that he had combat related service, having participated in the military campaigns in Normandy, Northern France, Ardennes, Rhineland Central Europe with the 4th infantry division. His MOS was a heavy truck driver. His separation qualification record revealed that he drove heavy trucks with the 687th Field Artillery in the European Theater of Operation. He served 22 months in the European Theater. His civilian occupation was also noted to be a heavy truck driver as part owner of a coal company. Thus noise exposure inservice is conceded. The veteran underwent a VA examination in April 1947, but this was limited to genitourinary complaints with no findings or complaints regarding the ears or of hearing loss. Likewise a December 1950 VA examination reported no findings or complaints regarding the ears. A July 1952 VA examination reported normal ears, with no testing of hearing done, and no complaints recorded regarding the ears. The earliest evidence of hearing loss problems and tinnitus is shown in private treatment records from the early 1990's. Tinnitus is shown in a May 1993 record that addressed complaints of light headedness, in which the veteran described having occasional intermittent tinnitus. He denied tinnitus in an earlier March 1993 record addressing complaints of dizziness. He also did not mention any loss of hearing in a May 1993 ear, nose and throat questionnaire. A June 1993 letter regarding hearing aids reported Left Starkey 91 providing adequate benefit for speech discrimination and recommending that a right side Ite be added for balance, as well as follow-ups to evaluate his left hearing aid. This letter is accompanied by an undated audiology examination report that suggests the presence of hearing loss and also reports the right ear tympanic membrane (TM) is perforated and scarred and the right TM is intact and scarred. Subsequent private records reflect no findings or evidence of hearing problems or other ear problems. Records addressing treatment for a right hand disorder repeatedly described his hearing as good on physical examinations dated in December 1996, March 1998. Likewise, records addressing other medical problems reflect no unusual findings on examination of the ears in June 1996. The veteran submitted a copy of a June 1995 Air Force memorandum regarding the validity of whispered voice test which stated that the whispered voice test may not be used to determine if a service member's hearing is normal, but could be used to determine a service member's ability to understand quiet speech in a quiet environment. The private medical records include an entry in June 1999 where the veteran reported being a retired truck driver, having owned a trucking company. VA records reflect that in March 2000 the veteran was seen for irrigation removal of cerumen in his ears, which he tolerated well and after which his TM's were visualized. In July 2000 he was scheduled for an ear wash with moderate cerumen noted bilateral ears. He stated that his doctor told him two months ago that his left ear drum was ruptured and he did not want the left ear washed. Thus, the right ear only was irrigated and cerumen was removed from the left ear by curette. None of these records discussed any complaints of hearing loss or tinnitus. In November 2004, the veteran underwent an audiological evaluation for known bilateral hearing loss. He was noted to have old hearing aids from 1991 and 1993. These were the only hearing aids he ever had. He reported wearing them full time while working. He had a lifetime history of noise with 3 years of military exposure and worked as a truck driver. He also had a 25 year history of diabetes and takes quinine for leg cramps. Audiogram testing was done and the results indicated a bilateral symmetrical sloping moderate to profound sensorineural hearing loss. His speech recognition was fair in both ears with monarual presentation. Loudness measures suggested mild tolerance problems with both ears. On otoscopic examination his canals were clear and TM's were visualized. He was considered a candidate for new hearing aids. In December 2004 he received new hearing aids and had them fitted in January 2005. The veteran was given a VA medical examination in March 2005 in order to determine the etiology of the veteran's hearing loss. This was conducted by an audiologist. At the examination, the veteran reported lifelong exposure to noise including for 3 years in the service and from working as a truck driver all his life. He did not indicate when he first began having difficulty with his hearing and reported particular difficulty hearing over the telephone. He also reported tinnitus in both ears, having begun approximately 15 years ago sounding like a bell and periodic. He denied a family history of hearing loss or aural pathology. On examination, the veteran's pure tone thresholds, in decibels, for the right ear were 65, 65, 75, 75, 75 and for the left ear were 55, 60, 55, 75, 75, both measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The average pure tone threshold at 1000, 2000, 3000, and 4000 hertz was 72 decibels in the right ear, and 66 decibels in the left ear. His speech discrimination was 78 percent for the right ear, and 86 percent for the left ear. The test results were summarized as indicating a sloping moderately severe to severe sensorineural hearing loss at 500 to 4000 Hertz in the right ear and a sloping moderate to severe sensorineural hearing loss at 500 to 4000 Hertz in the left ear. The findings on this examination represented a slight decrease in hearing in the right ear as compared to previous testing in November 2004. The veteran's tinnitus, which he described as occurring 3 or 4 times per day and lasting a couple of hours, just began 15 years ago. It was this examiner's opinion that the hearing loss was not likely related to his military service, based on the following facts. First that the length of time between the date of the claimed acoustic trauma to the present was almost 60 years. Next the age of the veteran would also increase the likelihood of presbyacusis. Additionally his history of occupational noise exposure was also a factor. Based on a review of the evidence the Board finds that service connection is not warranted for bilateral hearing loss and tinnitus. Although pursuant to 38 U.S.C.A. § 1154(b), the veteran is competent to testify as to his exposure to acoustic trauma in combat, the preponderance of the competent medical evidence has determined that his current hearing loss disability and tinnitus are not related to this combat related acoustic trauma. Specifically the VA medical examination in March 2005 determined that the etiology of the veteran's hearing loss was not related to service, to include noise exposure to combat. The examiner noted the veteran's lifelong exposure to noise, not only during his 3 years in the service but also from working as a truck driver all his life. The amount of time that elapsed between service and the manifestations of symptoms was also a factor in the examiner's opinion that the hearing loss disability and tinnitus are not related to service. The veteran's advanced age was also noted to increase the likelihood of his hearing problems. The Board notes that the medical evidence of record in addition to the March 2005 examination tends to support the examiner's negative opinion, as it shows the first evidence of hearing loss and tinnitus having manifested in the early 1990's, decades after service. This evidence also reflects service-connection is not warranted for hearing loss on a presumptive basis as there clearly was no hearing loss manifested within one year of service. Aside from the veteran's own contentions, there is no evidence to contradict the examiner's opinion regarding the etiology of the hearing loss and tinnitus. In the absence of evidence demonstrating that the veteran has the requisite training to proffer medical opinions, the contentions made by him are no more than unsubstantiated conjecture and are of no probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs