Citation Nr: 0815049 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-05 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had active duty service from March 1951 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2004, a statement of the case was issued in January 2005, and a substantive appeal was received in February 2005. The Board granted a motion to advance this case on the docket due to the veteran's advanced age in April 2008. 38 C.F.R. § 20.900(c). The Board notes that a January 2005 rating decision also denied entitlement to service connection for a low back disability. The veteran also initiated an appeal with respect to this issue by filing a notice of disagreement. The RO issued a statement of the case in November 2005; however, the veteran did not file a substantive appeal. Thus, this issue is not in appellate status. FINDINGS OF FACT 1. Bilateral hearing loss was not manifested during the veteran's active duty service or for many years thereafter, nor is any current bilateral hearing loss otherwise related to such service. 2. Tinnitus was not manifested during the veteran's active duty service or for many years thereafter, nor is tinnitus otherwise related to such service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Tinnitus was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in a March 2004 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit(s) sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board also notes that the March 2004 VCAA letter notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised, at page 2, to submit any evidence in his possession that pertains to his claim. The Board concludes that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the veteran in March 2004, which was prior to the August 2004 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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 of the disability. Dingess v. Nicholson, 19 Vet.App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection, but there has been no notice of the types of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. Despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service medical and personnel records, VA treatment records, a private opinion and a VA examination report. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The veteran was afforded a VA fee-based examination in August 2004. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination report obtained contains sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Bilateral Hearing Loss The present appeal involves a claim of entitlement to service connection for bilateral hearing loss. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that 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. The Board acknowledges that the lack of any evidence that the veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The veteran's March 1951 entrance service examination showed a normal hearing evaluation using the 15/15 spoken voice test. His service treatment records are silent with respect to any complaints of hearing problems. The veteran's March 1955 service examination prior to discharge stated that the veteran's ears were clinically evaluated as normal and showed a normal hearing evaluation using the 15/15 spoken voice test. In support of his claim, the veteran submitted an April 2004 private opinion by a medical doctor and an April 2004 statement from a fellow service member. The private opinion noted that the veteran had significant hearing loss and should be given an otology evaluation. The opinion noted the veteran's service in Korea on aircraft carriers and stated that the veteran had marked hearing loss when he came home from Korea that has gradually worsened, as would be the case with this type of exposure. The doctor further indicated that the veteran's hearing loss was related to service as the veteran was not exposed to significant noises after service. The lay statement essentially outlined the veteran's duties on the aircraft carrier and indicated that the veteran came out of service with significant hearing loss. The veteran was afforded a VA fee-based audiological examination in August 2004 by a medical doctor and clinical audiologist, which showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 75 85 100 LEFT 30 35 65 75 80 CNC speech recognition scores were 84 percent in the right ear and 96 percent in left ear. The examiner diagnosed the veteran with bilateral symmetrical sloping to profound sensorineural hearing loss, with good recognition at his most comfortable loudness level. The examiner reviewed the veteran's claims file, and noted that the veteran's service medical records included normal hearing evaluations using the 15/15 spoken-voice test in 1951 and 1955. The veteran gave a history of hearing loss and tinnitus. The examiner noted the veteran's duties as an aviation ordinance man on aircraft carriers as well as his post service civilian occupations, including open pit mining, ranching, and working as a butcher and meat cutter in a packing plant. The examiner opined that it was less likely than not that the veteran's hearing loss and tinnitus were the result of active duty military noise exposure. The examiner noted that the veteran had normal hearing at separation as evaluated by spoken voice tests. He had civilian occupational noise exposure and there was no record of complaints of hearing loss or tinnitus or treatment for hearing loss in the intervening years following his separation from active duty. The Board observes that the VA medical examiner reviewed the claims file, including the veteran's service medical records. The VA examiner also elicited history from the veteran; significantly, the examiner acknowledged the veteran's history of exposure to noise while in service. It appears that the VA examiner was fully aware of all of the pertinent facts and history. Thus, the Board finds that this opinion has a high probative value and is sufficient for appellate review. Further, VA treatment records have also been reviewed. However, these records only show an assessment of hearing loss and that the veteran was applying for service connection. Importantly, the records do not offer an opinion as to the etiology of any bilateral hearing loss. Based on the August 2004 VA examination, the Board concludes that the veteran meets the requirements of 38 C.F.R. § 3.385 for hearing loss disability. Thus, the Board must determine whether the veteran's bilateral hearing loss is related to his service. Based upon review of the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted. Initially, the Board finds that as there is no evidence of sensorineural hearing loss within a year of discharge, the service incurrence of sensorineural hearing loss may not be presumed. The first evidence of hearing loss was in 2004, 49 years after the veteran's separation from service. The Board recognizes the April 2004 private opinion, which indicated that the veteran's hearing loss was related to noise exposure in service. However, this opinion when weighed against the August 2004 VA fee-based examination has minimal probative value. There is no indication that the doctor at any point performed an audiological evaluation for the veteran. In fact, he recommended that the veteran be given an evaluation. Whereas, the VA examiner provided a complete examination in accordance with VA regulations. Further, while the private examiner was identified as a medical doctor, it does not appear that he had any sort of specialized experience or training in audiology. Significantly, he subsequently offered an opinion in April 2005 concerning the veteran low back disability. Again, the VA examiner was identified as a clinical audiologist. Importantly, it does not appear that the private doctor reviewed the claims file, including the veteran's service medical records, as was done for the August 2004 VA examination. In sum, the probative value of the April 2004 private opinion is outweighed by the August 2004 VA fee-based examination. The Board acknowledges the veteran's statements as well as the April 2004 lay statement from a fellow service member, which asserted that he had experienced hearing loss since service. Nevertheless, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, No. 07-7029, slip op. at 7 (Fed. Cir. July 3, 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, the veteran is competent to say that he experienced a subjective loss of hearing since service. However, the veteran and his fellow service member have not demonstrated that they have the expertise required to provide an etiology opinion as to the veteran's bilateral hearing loss disability or to detect when his hearing loss meets the degree of severity to constitute a disability under 38 C.F.R. § 3.385. The fact remains that there is no indication that any hearing loss was present in service or competent medical evidence supporting a link between the veteran's current bilateral hearing loss and service. Importantly, a VA medical examination found that the veteran's hearing loss is not related to service. While the veteran's contentions have been carefully considered, these contentions are outweighed by the service medical records and VA medical examination. At this point the Board also stresses that the veteran's current assertions that he had hearing loss and tinnitus since service appear to be inconsistent with the overall record which fails to show any pertinent complaints during service. Service medical records document unrelated complaints and treatment, but do not reference hearing problems or ringing in the ears. If the veteran was experiencing hearing loss and/or tinnitus during service it would be reasonable to expect that he would have mentioned such to medical personnel. It is also significant that the veteran did not voice any pertinent complaints at the time of his discharge examination, especially since the purpose of such examination was to determine if the veteran had any medical problems at that time. The Board also believes the veteran's current statements regarding a continuity of hearing loss and tinnitus during service are of diminished probative value against the backdrop of a lack of documentation of such complaints for many years after service. This lengthy period without evidence of treatment weighs against the claims. See generally Maxson v. Gober, 230 F.3d 1330 (Fed.Cir. 2000). Thus, based on the analysis above, the Board must conclude that the preponderance of the evidence is against a finding that service connection is warranted for bilateral hearing loss. As a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. Tinnitus The veteran is also claiming entitlement to service connection for tinnitus. Service medical records are silent with respect to any complaints of tinnitus or ringing in the ears. The March 1955 service examination prior to discharge showed that the ears were evaluated as normal. The veteran has asserted that he has had ringing in his ears since service. However, again, the first post service medical evidence of tinnitus is in 2004. The VA examiner again opined that it was less likely than not that the veteran's tinnitus was due to noise exposure while in service. Therefore, essentially applying the same analysis provided above, the Board must conclude that service connection for tinnitus is also not warranted. There is no persuasive supporting evidence of tinnitus while in service or for many years thereafter. Further, there is no competent medical evidence linking tinnitus to active duty service. Again, the highly probative August 2004 VA examination found that it was less likely than not that the veteran's tinnitus was due to noise exposure while in military service. The veteran's contentions that his tinnitus is related to service are outweighed by the medical evidence. Thus, the preponderance of the evidence is against a finding that the veteran's tinnitus is related to his active duty service. As a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107. (West 2002). ORDER Entitlement to service connection for bilateral hearing loss and for tinnitus is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs