Citation Nr: 0815155 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-04 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from November 1963 to February 1967. This matter comes to the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied service connection for bilateral hearing loss and tinnitus. In May 2007, the veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript of the hearing is of record. The Board remanded this case for additional development in October 2007. As the requested development has been accomplished, this case is properly before the Board. A service connection claim for a bilateral knee disability also was remanded in October 2007. However, the RO granted this claim in December 2007; so it is no longer on appeal. FINDINGS OF FACT 1. The competent medical evidence of record shows there is no relationship between the present bilateral hearing loss disability and service. 2. The competent medical evidence of record shows there is no relationship between the present tinnitus disability and service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2007). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant notice by letters dated in October 2002 and June 2006. While the June 2006 notice was not provided prior to the initial adjudication in March 2003, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in supplemental statements of the case dated from August 2006 to December 2007, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claims. VA has obtained service medical records, assisted the veteran in obtaining evidence, obtained medical opinions as to the etiology of the hearing loss and tinnitus disabilities, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The veteran seeks service connection for bilateral hearing loss and tinnitus. He testified that as a flight line aircraft mechanic, he was exposed to excessive noise in service, which caused his present hearing loss and tinnitus disabilities. He mentioned that he had to check the hydraulic pumps in the cockpits of the planes and was around jet engine noise, which was quite deafening. He also noted that he did not wear ear protection all of the time, particularly when he was working on the planes. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record shows present hearing loss and tinnitus disabilities. A January 1998 private medical record notes complaints of ears ringing, which started six weeks prior after an upper respiratory infection. The veteran also testified as to the presence of tinnitus, which he indicated he first noticed three to four years after service. Tinnitus is defined as a noise in the ears, such as ringing, buzzing, roaring, or clicking. See Dorland's Illustrated Medical Dictionary, 28th edition, p. 1714. The veteran is competent to testify as to that which he can observe or experience, including complaints of tinnitus. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Current private audiograms in September 2003 and April 2007 show diagnoses of bilateral sensorineural hearing loss. An October 2007 VA examination report also shows a diagnosis of mild to moderate combined sensory/neural hearing loss on the right and left and the veteran's reports of a constant humming/hissing tinnitus in both ears. Hearing loss meeting the definition of disability under 38 C.F.R. § 3.385 (2007) was demonstrated. The veteran's service personnel and medical records corroborate the veteran's contentions of exposure to loud noise in service. The DD-Form 214 shows the veteran served in the U.S. Air Force and that his Military Occupational Specialty was Aircraft Mechanic. A July 1964 hearing conservation data form notes that the veteran's noise exposure included jet engine noise and that his primary work area was on the flight line. It was noted that he wore hearing protection. Hearing was within normal limits at that time and on the January 1967 discharge examination. Sensorineural hearing loss was not shown in service or to a degree of 10 percent within one year after service discharge. 38 C.F.R. §§ 3.307, 3.309 (2007). As the record shows current hearing loss and tinnitus and evidence of exposure to acoustic trauma in service, the determinative issue is whether there is a relationship between these. An October 2007 VA examination report shows the examiner reviewed the veteran's claims file and noted that the veteran was discharged from the military in 1967 and denied any significant post-service civilian noise exposure. Prior to service, the veteran reportedly worked as a riveter for about two months, but his hearing was shown by audiometric test results in 1964 and 1966 and at separation in 1967 to be normal in both ears. He also denied ear trouble and hearing loss in November 1966. By the time of his private audiological evaluation in April 2007, he had mild to moderately severe bilateral hearing loss and on the present evaluation he had slightly worse hearing in the left. The examiner found that this progression from normal hearing at separation from service to the current hearing loss was not typical of noise damage ending in 1967. Therefore, the examiner's opinion was that the veteran's current sensorineural hearing loss with tinnitus was less likely as not related to acoustic trauma in service. The negative medical evidence in this case outweighs the positive evidence. Although the veteran asserts that his hearing loss and tinnitus are related to his service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Board has considered the veteran's lay assertions, they do not outweigh the medical evidence of record, which shows that there is no relation between the veteran's present hearing loss and tinnitus disabilities and the acoustic trauma in service. The veteran's representative asserts that the examiner found no relationship between the present hearing loss and tinnitus disabilities by incorrectly relying on the fact that there was no disability found in service. The examiner's opinion, however, was based on the progression of hearing loss after service, which is enough of a basis to support the medical opinion. Furthermore, a competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The preponderance of the evidence is against the service connection claim for bilateral hearing loss and tinnitus; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs