Citation Nr: 1006971 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 08-09 876A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for coronary artery disease, including as secondary to service-connected diabetes mellitus, type II and service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus, type II and service-connected PTSD. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 RO decision, which denied claims for service connection for hypertension and coronary artery disease, and a June 2007 RO decision, which denied a claim for service connection for bilateral hearing loss. The Board notes that the March 2008 statement of the case (SOC) also included the issues of entitlement to service connection for tinnitus and entitlement to service connection for eye problems as secondary to diabetes mellitus. However, as the Veteran did not indicate on his April 2008 VA Form 9 Appeal, or any other VA Form 9 Appeal, that he wished to appeal these issues, the Board finds that these issues have not been properly appealed and are not currently before the Board for adjudication. The Board also notes that the Veteran was notified in a March 20, 2009, letter that he was scheduled for a hearing before a member of the Board on April 9, 2009. The Veteran failed to report for this hearing, has not shown good cause for his failure to report, and has not requested that this hearing be rescheduled. Additionally, it appears that the Veteran indicated in a December 2008 statement that he no longer wished to have a hearing before a member of the Board. As such, the Board will proceed to the merits of the claims. Additionally, the Board notes that the Veteran submitted a claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU) in July 2007. It does not appear that the RO has ever adjudicated this claim. As such, this issue is referred back to the RO for appropriate consideration. With regard to the Veteran's claims for service connection for coronary artery disease and hypertension, the Board notes that, on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. As required by 38 U.S.C. § 1116, VA will issue regulations through notice and comment rule-making procedures to establish the new presumptions of service connection for those diseases. Those regulations will take effect on that date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. On November 20, 2009, the Secretary of Veterans Affairs directed the Board to stay action on all claims for service connection that cannot be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. As this appeal contains one claim clearly subject to the stay, and another claim that may be affected by these new presumptions, the Board must stay action on these matters in accordance with the Secretary's stay. Specifically, the issues of entitlement to service connection for coronary artery disease and hypertension are subject to the stay and will not be decided at this time. Once the planned final regulations are published, the adjudication of any case or claim that has been stayed will be resumed. FINDING OF FACT The Veteran is not shown by the most probative evidence of record to have bilateral hearing loss that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, nor may bilateral sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1154, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. A VCAA letter dated in June 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the June 2006 letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and private medical records are in the file. The Board finds that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2009). The Veteran was provided a VA audiological examination for his bilateral hearing loss claim in March 2007. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds this examination report and opinion to be thorough and complete. Therefore, the Board finds this examination report and opinion are sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include organic diseases of the nervous system, such as hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2009). "[I]mpaired 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 notes that the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran essentially contends that he currently experiences hearing loss as a result of his active duty service. Specifically, the Veteran asserts that he served as a door gunner on a helicopter during service. See VA Form 9 Appeal, April 2008. The Veteran contends that his exposure to combat and aircraft noise in service predisposed him to the development of hearing loss later in life. See Statement of Accredited Representative in Appealed Case, February 2009. A review of the Veteran's service treatment records does not reflect any complaints, treatment, or diagnoses of hearing loss during service. With regard to a current disability, the Board notes that the Veteran underwent a VA audiological examination in March 2007. The examiner reviewed the claims file and noted that the Veteran served in combat conditions in Vietnam as an artillery/helicopter gunner. The examiner noted that the Veteran complained of bilateral progressive subjective hearing loss beginning over 20 years ago. The Veteran reported a history of military noise exposure from artillery and aircraft noise as a helicopter door gunner for approximately 1 year without hearing protection device use. He also reported occupational noise exposure, including 2 months working in a steel mill without hearing protection devices and approximately 31 years working in construction with heavy equipment, with reported consistent use of insert earplugs and circumaural hearing protection. The Veteran also reported recreational noise exposure from hunting in the 1970s (5 to 6 years, 2 to 3 times per year) without hearing protection device use. Upon examination, the Veteran's auditory threshold for all of the frequencies 500, 1000, 2000, 3000, 4000 Hertz was recorded as 40 decibels or greater. As such, the criteria for a current hearing loss disability according to VA standards has been met bilaterally. The examiner noted that the Veteran's claims file was silent for complaints of hearing loss or ear conditions. Furthermore, the Veteran reported a history of occupational noise exposure. Upon examination of the Veteran and review of the claims file, the examiner opined that the Veteran's complaints of hearing loss occurred at a time too remote from discharge from military service. Therefore, it is less likely than not that his complaints of hearing loss are related to military service. As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated hearing loss of either ear to a compensable degree within one year of discharge from active duty. As such, service connection for hearing loss cannot be granted on a presumptive basis. With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2009). Currently, there is no evidence of record indicating that the Veteran had hearing loss in service and no medical opinions of record linking his current hearing loss to service. Moreover, it was specifically noted at the March 2007 VA examination that it is less likely than not that his complaints of hearing loss are related to military service. Thus, the Veteran's claim for service connection for hearing loss must fail on a direct basis as well. See Shedden, supra. Additionally, the Board notes that, during his examination, the Veteran reported the onset of his hearing loss approximately 20 years ago. This places the onset approximately two decades following separation. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges the Veteran's contentions that he has bilateral hearing loss as a result of his active duty service. The Board also notes the Veteran's contention that his combat related noise exposure predisposed him to developing defective hearing at a later date. See Statement of Accredited Representative in Appealed Case, February 2009. However, the most probative medical evidence of record does not support the contention that the Veteran's current hearing loss disability is related to service. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements relating the hearing loss disability that had its onset decades after service to noise exposure during service are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). Therefore, the Board finds the VA opinion to be far more probative than the aforementioned lay assertions. The Board acknowledges that the Veteran's personnel records reflect that he served as a door gunner in service. Additionally, the Veteran was granted service connection for PTSD with depression in a January 2007 rating decision, due to the RO's determination that the Veteran's records were consistent with his contention of exposure to combat situations based on his military occupational specialty of door gunner and award of the Aircraft Crewman Badge. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that under 38 U.S.C.A. § 1154(b), a combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, section 1154(b) does not establish service connection for a combat Veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). As discussed above, a medical opinion was requested regarding the etiology of the Veteran's current hearing loss disability. The examiner reviewed the Veteran's claims file, noted that the file was silent for complaints of hearing loss or ear conditions, considered the Veteran's reported history of occupational noise exposure, and examined the Veteran before opining that the Veteran's complaints of hearing loss occurred at a time too remote from discharge from military service and, therefore, it is less likely than not that his complaints of hearing loss are related to military service. Given the detailed review of the claims file and persuasive rationale provided by the audiologist, the Board finds his opinion to be far more persuasive than the lay statements of the Veteran. Consequently, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs