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