Citation Nr: 0815039 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-15 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from November 1967 to November 1969. Service in Vietnam is indicated by the evidence of record. This case comes before the Board of Veterans Appeals (the Board) on appeal from an April 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia which denied the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. The veteran filed a notice of disagreement in regards to the April 2004 rating decision. He requested review by a decision review officer (DRO). The DRO conducted a de novo review of the claims and confirmed the RO's findings in an April 2006 statement of the case (SOC). The appeal was perfected with the submission of the veteran's substantive appeal (VA Form 9) in May 2006. The Louisville RO currently has original jurisdiction over the veteran's claims. Issue not on appeal In a November 2005 rating decision, the RO granted service connection for diabetes mellitus associated with herbicide exposure. A 20 percent disability rating was assigned. To the Board's knowledge, the veteran has not disagreed with that decision and it is therefore not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. 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 sensorineural hearing loss was not incurred in or aggravated by active military service, and such 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 Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. 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 claimants in the development of their 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 has been 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 such 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 claims. 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. 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 a letter from the RO dated December 23, 2003, including evidence of "a relationship between your current disability and an injury, disease, or event in military service." The December 2005 letter also informed the veteran that presumptive service connection could be established for certain chronic disabilities "which become evident within a specific period of time." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in the above-referenced December 2003 letter as well as additional letters from the RO dated May 9, 2005 and October 25, 2006, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised in all three letters that VA would assist him with obtaining relevant records from any Federal agency, including records from the military, VA Medical Centers and the Social Security Administration. The December 2003 VCAA letter indicated that outpatient treatment records from the VA Medical Center in Huntington had been associated with the claims folder. The veteran was also advised in the letters that a VA examination would be provided if necessary to decide his claims. With respect to private treatment records, all three letters informed the veteran that VA would make reasonable efforts to obtain non- Federal evidence. Included with the letters were copies of VA Form 21-4142, Authorization and Consent to Release Information, and the letters asked that the veteran complete such so that the RO could obtain private records on his behalf. The October 2006 VCAA letter confirmed receipt of a private audiogram. The May 2005 and October 2006 letters further 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 originals] Finally, the Board notes that the May 2005 and October 2006 VCAA letters specifically requested that the veteran: "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 requirements 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. The veteran was not provided complete notice of the VCAA prior to the initial adjudication of his claims in April 2004. The Board is of course aware of the Court's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the veteran was provided with additional VCAA notice through the May 2005 and October 2006 VCAA letters, and his claims were readjudicated in the March 2007 SSOC, after he was provided with the opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider his claims on the merits. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (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 a 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 that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim 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 the 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 the April 2006 SOC and October 2006 VCAA letter, 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 SOC and letter as to examples of evidence that would be pertinent to a disability rating, such as medical 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, the April 2006 SOC and October 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the SOC and letter 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. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Because there is no indication that there exists any evidence which could be obtained which 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 appellant]. 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. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, reports of VA and private treatment of the veteran have been associated with the claims folder. Additionally, the veteran was afforded VA examinations in March 2004 and in May 2005, the reports of which reflect that the examiners reviewed the veteran's past medical history, recorded his current complaints, conducted an appropriate audiological examinations and rendered appropriate diagnoses and opinions. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined the option of a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (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). Service connection - hearing loss For certain chronic disorders, including sensorineural hearing loss, service connection may be granted 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 (2007). Analysis In this case, it is undisputed that the veteran now has bilateral hearing loss and tinnitus, which is evidenced by March 2004 and May 2005 audiological examination findings. Hickson element (1) is therefore satisfied. With respect to Hickson element (2), in-service disease and injury, the Board will separately address disease and injury. Concerning in-service disease, the veteran's November 16, 1967 entrance examination was completely normal with respect to the veteran's hearing and his November 9, 1969 separation physical examination, including audiology testing, was pertinently negative. In an accompanying report of medical history, the veteran denied hearing problems. The service medical records are otherwise negative with respect to ear problems, hearing loss and tinnitus. The Board additionally notes that bilateral hearing loss was not present until March 2004, well beyond the period for presumptive service connection for sensorineural hearing loss. See 38 C.F.R. §§ 3.307, 3.309 (2007). With respect to in-service injury, the veteran in essence contends that exposure to noise from helicopter engines caused injury to his ears. See the October 20, 2004 Statement in Support of Claim. The Board observes that the veteran's MOS was airframe repairman. The Board wishes to make it clear that it does not necessarily dispute that the veteran may have been exposed to noise in service, as undoubtedly were millions of other veterans. However, the veteran and his representative have not pointed to any such statutory or regulatory presumption which equates noise exposure with injury to the ears, and the Board is aware of none. In this connection, the Board notes that the evidence of record does not indicate that the veteran is a veteran of combat, and he does not appear to so contend. The combat presumptions are therefore not applicable. See 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.304(d) (2007). The medical evidence of record does not support the veteran's implied contention that he sustained any ear injury during his military service. Crucially, his separation physical examination is pertinently negative for ear injury, and in the accompanying report of medical history he specifically denied ear trouble and hearing loss. Significantly, there is no mention of ear problems by the veteran until he filed his initial claim of entitlement to VA benefits in September 2003, almost 25 years after he left military service in November 1969. See Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]. The lack of any evidence of ear problems for two and a half decades after service, and the filing of the claim for service connection 25 years after service, is itself evidence which tends to show that no injury to the ear was sustained in service. See 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]; see also 38 C.F.R. § 3.102 [noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence]. Thus, the Board rejects the notion that acoustic trauma and resulting ear damage should be conceded. There is no objective, contemporaneous evidence that the veteran sustained acoustic trauma in the performance of his duties. In essence, the veteran's case rests of his own non-specific contention that he sustained a bilateral ear injury or injuries in service. The Board has considered those statements. However, his statements are outweighed by the utterly negative service medical records, to include his own denial of such problems in connection with his separation physical examination, as well as the lack of objective evidence of ear 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]. In short, because the record as a whole clearly demonstrates that the veteran never mentioned an injury in service until he brought up the subject in connection with his claim for VA benefits approximately 25 years after his separation from service, the Board finds his recent statements concerning such an injury to be lacking in credibility and probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. Hickson element (2) is therefore not met, and the claims fail on this basis alone. For the sake of completeness, the Board will discuss the remaining element, medical nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. In the absence of an in-service incurrence or aggravation of ear disease or injury, it follows that or medical nexus, is necessarily lacking also. This was precisely the finding of the VA audiologist in March 2004 and the VA fee-basis audiologist in May 2005, who determined that the veteran's hearing loss was as not as likely due to exposure to noise in service. The May 2005 VA fee-basis examiner additionally determined that the veteran's tinnitus was not related to military service. The veteran himself reported to the examiner that his tinnitus began many years after his separation from service. There is no competent medical evidence to the contrary. To the extent that the veteran himself or his representative contends that a medical relationship exists between his current hearing problems and service, their opinions are entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-5 (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]. Any such statements offered in support of the veteran's claims do not constitute competent medical evidence and cannot be accepted by the Board. See also Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claims; he has not done so. See 38 U.S.C.A. § 5107 (West 2002) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. Accordingly, Hickson element (3), medical nexus, has also not been satisfied, and the claims also fail on that basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. Therefore, contrary to the assertions of the veteran's representative, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefits sought on appeal are accordingly 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