Citation Nr: 1124875 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-10 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of an injury to the mouth. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from January 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Newark, New Jersey. In pertinent part of the December 2008 decision, the RO denied service connection for bilateral hearing loss, tinnitus, and residuals of a mouth condition, claimed as mouth injury/hit in mouth. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished. 2. The preponderance of the evidence does not establish that the Veteran had hearing loss disability during service, that a hearing loss disability was manifested to a compensable degree within the first post-service year, or that the Veteran's current right ear hearing loss is related to service. 3. The Veteran does not have a left ear hearing loss disability. 4. The preponderance of the evidence does not establish that the Veteran had tinnitus during service, that tinnitus was manifested to a compensable degree within the first post-service year, or that the Veteran's current tinnitus is related to service. 5. By granting the Veteran the benefit of the doubt it is as likely as not that his residuals of a mouth injury began during his military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2010). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2010). 3. Extending the benefit of any doubt to the Veteran, disability manifested by residuals of an injury to the mouth is due to disease or injury that was incurred in active service. 38 U.S.C.A. § 1110, 1131, 5.107, 7104 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, legally adequate notice was provided to the Veteran in a September 2008 correspondence. This letters detailed the elements of a service connection claim, described the evidence and information necessary to substantiate the claims, and set forth the respective responsibilities of VA and the Veteran in obtaining such. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that, upon receipt of an application for service connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also require notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO informed the Veteran of the disability rating and effective dates in the September 2008 letter. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent 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 with respect to the issues decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records and VA treatment records. The Veteran was not afforded a VA examination for his residuals of a mouth injury; however, the Board finds that because the Veteran is being granting service connection herein below he is not prejudiced from continuing without a VA examination. The Veteran was afforded a VA examination in December 2008 for his bilateral hearing loss and tinnitus. The Board finds that the examinations for service connection are sufficient since they were thorough and contemporaneous examinations of the Veteran that took into account records of pre-service treatment, service treatment records, and records of post-service examination and treatment. Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board is aware of no additional outstanding evidence that is necessary for a fair adjudication of the claims that has not been obtained. Finally, the Veteran was advised of his right to a hearing before the RO and/or before the Board, but he waived that right. In May 2010 the Veteran submitted additional evidence that pertained to his residuals of an injury to the mouth. While the Veteran did not submit a waiver of review by the Agency of Original Jurisdiction, the Board is deciding the matter in the Veteran's favor, and thus the Veteran is not prejudiced with our action today. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims on appeal. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service 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 order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Hearing Loss and Tinnitus For the purpose of applying the laws administered by VA, impaired hearing will be considered 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 those frequencies are 26 decibels or greater; or, when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against a grant of service connection for both bilateral hearing loss and tinnitus. First, the Veteran's service treatment records are silent for any complaints or diagnosis of tinnitus. While the Veteran's service treatment records show a slight decrease in his ability to hear during his military service, this decrease in hearing acuity did meet the definition of a hearing loss disability as defined by 38 C.F.R. § 3.385 at any point during service. The Board has reviewed all of the Veteran's in-service audiological examinations. The Veteran's September 1966 pre-induction audiological examination revealed pure tone audiometry test results for the right ear were: 10 decibels at 500 Hertz, 5 decibels at 1000 Hertz, 0 decibels at 2000 Hertz, and -10 decibels at 4000 Hertz. The Veteran's pure tone audiometry test results for the left ear were: 10 decibels at 500 Hertz, 5 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, and 0 decibels at 4000 Hertz. The Veteran's October 1969 Seperation Medical Examination showed that the Veteran's pure tone audiometry tests results for the right ear were: 15 decibels at 500 Hertz, 0 decibels at 1000 Hertz, 0 decibels at 2000 Hertz, and 5 decibels at 4000 Hertz. The Veteran's pure tone audiometry tests results for the left ear were: 10 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 0 decibels at 2000 Hertz, and 10 decibels at 4000 Hertz. After a careful review of the Veteran's service treatment records the Board finds that though the Veteran had a slight decrease in his hearing bilaterally throughout his military service, he still did not at that time meet the criteria for having a hearing loss disability as defined in 38 C.F.R. § 3.385. In addition, at the Veteran's separation from service, his hearing acuity was within normal limits. Second, the evidence of record does not show complaints of or treatment for hearing loss or tinnitus until decades after separation from service. The first post-service evidence of record of any possible hearing loss disability is found in a December 2008 VA examination. This December 2008 audiogram was the earliest post service audiogram to show right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The lengthy period between separation from service in 1969, and the first likely showing of right ear hearing loss disability in 2008, without treatment, is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). At the December 2008 examination the Veteran was diagnosed with a right ear hearing loss disability as defined in 38 C.F.R. § 3.385. The Board notes that the Veteran was not diagnosed with left ear hearing loss disability for VA purposes since the Veteran's hearing was 15 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 35 decibels at 4000 Hertz. To this day, hearing loss disability is not shown in the left ear. Without evidence of a left ear hearing loss disability under 38 C.F.R. § 3.385, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Court stated "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held "[i]n the absence of proof of a present disability[,] there can be no valid claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The VA examiner diagnosed the Veteran with right ear sensorineural hearing loss that was normal to moderate. The VA examiner also diagnosed the Veteran with bilateral tinnitus. The Veteran reported that his tinnitus began approximately five years prior, occurred four to five times per week, and lasted minutes in duration. The VA examiner noted that the Veteran reported positive occupational noise exposure since service. He tested pumps in a manufacturing plant for 14 years with the use of hearing protection devices and for 19 years he worked cutting sheet metal. The VA examiner opined that the Veteran's hearing loss and tinnitus were not caused by, or a result of, combat noise exposure. The VA examiner's rationale for his opinion reads as follows: 1) Hearing sensitivity at time of military discharge was within normal limits bilaterally as evidenced by exit physical examination. 2) There is no evidence documenting that hearing loss or tinnitus were incurred in or aggravated by military service, nor medical evidence that these conditions manifested to a compensable degree within one year following military discharge. 3) Veteran reports positive occupational noise exposure, most likely a contributing factor in his overall hearing loss. December 2010 VA Examination Report The Veteran has alleged that he incurred bilateral hearing loss and tinnitus a result of his in-service exposure as a maintenance worker stationed in an outpost and that hearing protection was not provided. The Board notes that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). While the Board finds that the Veteran did have in-service noise exposure, and that the Veteran now has right ear hearing loss disability and tinnitus, the Veteran, as a layperson, is not competent to give a medical opinion as to a medical diagnosis or opinion as to the cause or etiology of a medical condition. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Here, the only medical opinion of record regarding the likely etiology of the hearing loss and tinnitus is against the Veteran's claim of service connection for bilateral hearing loss. A Veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Therefore, without evidence of an etiological relationship, service connection for hearing loss and service connection for tinnitus must be denied. In sum, the Board finds that the evidence of record is against the Veteran's claims of service connection for hearing loss (in either ear) and tinnitus. The Board finds that left ear hearing loss does not meet the standards for a VA hearing loss disability under 38 C.F.R. § 3.385. The only competent opinion of record is against the Veteran's claims of right ear hearing loss and tinnitus. The Board finds that service connection for hearing loss and service connection for tinnitus are not warranted. Residuals of an Injury to the Mouth The Veteran asserts that he now suffers with residuals of an injury to the mouth that are the result of an in-service accident that occurred when he was stationed in the Republic of Vietnam. He states that he was hit in the mouth with a piece of lumber while loading a truck. After a careful review of the Veteran's claims file the Board finds that by granting the Veteran the benefit of doubt, service connection for residuals of an injury to the mouth is warranted. The Veteran's service treatment records were silent for any injury to the Veteran's mouth and teeth. In addition, the Veteran's Separation Report of Medical examination had "normal" marked for mouth and throat and his Separation Report of Medical History had "no" checked for severe tooth or gum trouble. Even though the Veteran's service treatment records are silent for indications of treatment or diagnosis of any in-service mouth problems, the Veteran has submitted credible evidence that he had an in-service injury involving the mouth. The Board finds it pertinent that the Veteran submitted a letter that he wrote in October 1968 to his parents. In this letter, the Veteran described in detail the inservice injury and treatment received for it. The Veteran's claims file includes only one medical opinion that indirectly addresses the etiology of the current residuals of a mouth injury. In a February 2010 opinion, the Veteran's private dentist noted that he had been treating the Veteran since June 1998 and that at this time he was seen for a limited oral examination for the purpose of documenting facial trauma to his upper lip and anterior teeth that the Veteran reported occurred when he was in Vietnam. The Veteran reported a history of being struck by a piece of 2 x 4 wood while loading a truck when he was on active duty in Denang, Vietnam. It was noted that he received stitches for a lip by a medic and that tooth #8 was loosened; however, he did not receive treatment for it. The Veteran reported that after he returned to the United States he had endo done on tooth #8 and it exfoliated and he had a 3 unit bridge made around 1972. The Veteran's private dentist then noted that an August 1997 x-ray shows that the Veteran currently has the same 3 unit bridge in place. The Veteran's dentist opined as follows: In my opinion, Mr. [ ] statements of facial trauma and tooth loss are consistent with a blunt blow to the face that occurred several decades in the past. The bridge appears to be very old and shows years of wear, even though it is still serviceable. The scar and missing tooth were present when he first became a patient in this office. February 2010 Letter from Private Dentist The Board cannot disregard the February 2010 opinion that relates the Veteran's symptomatology to service. While it was based in part upon the Veteran's self-reported history, it was also based upon the examiner's findings upon study of the current condition and bridge. This opinion favorable to the Veteran's claim carries a good deal of weight. There are no opinions of record that contradict this opinion. In addition, the Board finds it significant that the Veteran has been consistent over the years in reporting the same account of inservice injury. Throughout the course of his communications with VA, the Veteran has consistently maintained that he was injured in service and that his current residuals of a mouth injury are related to his in-service injury. The Board finds it pertinent that the record contains no evidence showing that the Veteran has ever denied that his current residuals of an injury to the mouth began in service. These accounts are entirely consistent with the account provided in the October 1968 letter that the Veteran wrote to his father, and a buddy statement on file. After careful review of the record, the Veteran's credible statements, and the findings shown on reports of private examination, and giving the benefit of any doubt to the Veteran, the Board finds the evidence for and against the claim to be at least in approximate balance. Here there are no medical opinions of record to refute the Veteran's assertions that his current residuals of a mouth injury are related to an in-service injury. Under such circumstances, resolution of all reasonable doubt shall be in the Veteran's favor. Consequently, the Board concludes that service connection for residuals of an injury to the mouth is warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for residuals of an injury to the mouth is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs