Citation Nr: 1013755 Decision Date: 04/12/10 Archive Date: 04/29/10 DOCKET NO. 08-34 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for osteoporosis (claimed as secondary to radiation exposure). 2. Entitlement to service connection for vision loss. 3. Entitlement to service connection for diabetes mellitus, type II (claimed as secondary to herbicide exposure). 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Dirk Harris McClanahan, Law Clerk INTRODUCTION The Veteran had active service from September 1960 to September 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. FINDINGS OF FACT 1. The Veteran was exposed to noise during active service. 2. Hearing loss was not demonstrated until several years following separation from active service; the competent evidence does not show that the Veteran's currently diagnosed hearing loss is causally related to active service. CONCLUSION OF LAW 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, 1131, 1137, 5103(a), 5103A, 5107(b) (West 2002), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the present case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2007 that fully addressed all notice elements and was sent prior to the initial RO decision on the matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The letter also explained how VA establishes disability ratings and effective dates. Therefore, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains his service treatment records, as well as post-service reports of treatment and examination. Moreover, his statements in support of his claim are of record. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Decision The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. The Veteran is claiming entitlement to service connection for bilateral hearing loss. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). In evaluating the Veteran's hearing loss claim, it is observed that the threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, even where clinical hearing loss is demonstrated, entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provide that, for the purpose of applying the laws administered by VA, 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, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, the service connection must be denied. Gilbert v. Derwinski, 1 Vet. Pp. 49 (1990). In the present case, the Veteran contends that his current hearing loss is causally related to his active service. In his October 2008 VA Form 9, he contended that during his service he was exposed to many loud noises due to his close proximity to jet engine testing and to flight lines. He also noted his presence in the power room of a missile site in Okinawa that was very noisy. The Veteran's DD 214 indicates that he was in the United States Air Force and his military occupational specialty (MOS) involved equipment repairs. In light of this, his contentions of noise exposure are deemed credible and appear consistent with the circumstances of his service, as indicated in official military records. See 38 U.S.C.A. § 1154(a). Accordingly, in-service noise exposure is conceded here. Having determined that the Veteran was exposed to noise during service, the Board must now consider whether the currently-diagnosed hearing loss is causally related to such exposure. To this end, the medical evidence of record has been reviewed, and will be discussed in pertinent part below. The Veteran's service treatment records show no diagnosis, treatment, or complaint of bilateral hearing. During the Veteran's separation examination in August 1964 the Veteran was given an audiometric examination that reflected clinically normal hearing per Hensley. He denied ear trouble in a report of medical history completed at that time. Following separation from active service, there is no showing of complaints or treatment for hearing loss until 2007. A VA examination in August 2007 notes the Veteran's reports of noise exposure, tinnitus, and intolerance to loud noises. He denied intervening occupational noise exposure. Audiometric testing showed impaired hearing for VA purposes in both ears. Again, there is no treatment or complaint of hearing loss until 2007, roughly 40 years following discharge. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). It is acknowledged that the Veteran is competent to report observable symptoms such as hearing loss and ringing in the ears. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran has essentially contended that his hearing loss has existed since his military service. Again, he is competent to state that a history of observable hearing loss. However, his claims of continuous symptomatology are not found to be persuasive here. Indeed, the Veteran's hearing was within normal limits upon separation from service, and he denied any ear trouble at that time. Moreover, he did not raise a claim for hearing loss until 2007, about four decades after discharge. If he had been experiencing continuous symptomatology since service, it is reasonable to expect that he would have raised a claim much sooner. Therefore, continuity of symptomatology is not here established, either by the clinical record or the Veteran's statements. Moreover, no competent medical evidence finds that the Veteran's current hearing loss is causally related to active service, as will be explained below. In August 2007, the Veteran was afforded a VA examination for his bilateral hearing loss. During the examination, the Veteran reported noise exposure in service due to proximity to flight lines, jet engine testing, and working in a power station for a missile silo. Based upon audiological testing results, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss. She noted that his hearing at the time of separation were within normal limits. The VA audiologist opined that the Veteran's current hearing loss was not caused by military noise exposure based on his normal hearing at separation. With regard to the examiner's opinion, the Board initially notes that it weighs against the Veteran's claims. When read in context, the examiner clearly finds that the Veteran's hearing loss was not caused by military noise exposure. The examiner's opinion was offered following a review of the record and after an objective examination of the Veteran. As such, the VA examiner's August 2007 medical opinion is of great probative value. Moreover, no other medical evidence refutes that opinion. The Veteran himself believes that this current bilateral hearing loss is causally related to active service. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, to the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances, the question of causation here involves complex issues that the Veteran is not competent to address. The Board has also considered whether service connection for bilateral hearing loss is warranted on a presumptive basis. Under 38 C.F.R. § 3.309(a), organic disease of the nervous system, to include sensorineural hearing loss, is regarded as a chronic disease. However, in order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). As the evidence of record fails to establish any clinical manifestations of hearing loss manifest to a degree of 10 percent or more within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. In sum, there is no support for a grant of service connection for bilateral hearing loss. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs