Citation Nr: 1134814 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-33 178 ) 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 bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In June 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain a medical opinion. The action specified in the June 2010 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have onset in service and was not caused or aggravated by the Veteran's active military service. 2. The Veteran's tinnitus did not have onset in service and was not caused or aggravated by the Veteran's active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2010). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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) (2010). Certain chronic diseases, including hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2010). For purposes 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran asserted in a March 2008 statement that he has had had hearing problems since his military service, and his service personnel records support his reports that he was exposed to substantial acoustic trauma as a combat infantryman in Vietnam. However, there are no complaints or findings of hearing loss or tinnitus in service or for many years after service, providing limited evidence against this claim. The Veteran's hearing was within normal limits at separation from service, providing highly probative evidence against the Veteran's claim. Additionally, the Veteran had post-service noise exposure through his employment. Records from the Social Security Administration (SSA) show that the Veteran reported operating trucks, tractors, forklifts, ditch-diggers, welders, steam cleaners, sandblasters, air compressors, drill press, and all types of hand tools and small electrical tools. SSA records also show that at a number of medical examinations throughout the 1980s, the Veteran had no hearing loss, providing further evidence against his claims as it indicates the Veteran did not have hearing problems for years after service. The first evidence of hearing loss of record is in December 2007, when the Veteran was evaluated by an audiologist at the Hearing and Balance Centers. At that time, the Veteran reported a gradual decline in hearing over the last couple of years, as well as constant bilateral tinnitus for the last forty years which had worsened in the last two years. Audiological testing indicated mild to severe sensorineural hearing loss in the left ear and a mild to profound hearing loss in the right ear. In May 2008, the Veteran was afforded a VA audiological examination which found bilateral tinnitus and moderate sloping to profound bilateral hearing loss which meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. The Veteran reported hunting as a child without hearing protection, as well as in-service noise exposure without the use of hearing protection. He also reported post-service noise exposure with protection from working drilling wells. The examiner concluded that the Veteran's hearing loss and tinnitus were less likely than not related to the noise exposure during the Veteran's active military service, but provided no explanation for her conclusion, providing some evidence against these claims. In an August 2010 addendum, the examiner explained that audiological testing at enlistment and separation from service showed normal hearing, with no aggravation or deterioration of hearing levels during active service. There were no complaints of tinnitus or hearing problems noted during service. For these reasons, the examiner concluded that the Veteran's current hearing loss and tinnitus are less likely than not related to his active military service. Based on all the above evidence, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus are not warranted. While exposure to loud noises in service is conceded based on the nature of the Veteran's service, service and post-service medical records show no evidence of hearing loss or tinnitus in service or for many years after service. The Veteran had post-service noise exposure of many years duration. At a private hearing evaluation in December 2007, the Veteran reported onset of hearing loss with the past few years. Additionally, a VA examiner has opined that the Veteran's hearing loss and tinnitus are less likely than not the result of the Veteran's active military service. The Board acknowledges the Veteran's testimony that he has had hearing problems and tinnitus since service, but must find the contemporaneous medical evidence to be more probative than the Veteran's history reported many years after service during his claim for VA benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran);see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The Board finds that the Veteran's statements are outweighed by the post-service treatment records and the VA examination report. Additionally, while the Veteran may sincerely believe his current hearing problems are the result of his military service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has hearing loss and tinnitus due to his noise exposure in service (as opposed to his extensive post-service noise exposure) is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disabilities is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for bilateral hearing loss and tinnitus is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Duty 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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 notice from 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; and (3) that 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify and assist was satisfied by a letter sent to the Veteran in March 2008, prior to the initial RO decision. This letter informed the Veteran of what evidence was required to substantiate his claims and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical 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, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and SSA records. The veteran submitted an evaluation from Hearing and Balance Centers. The appellant was afforded a VA medical examination in March 2008, with an addendum provided in August 2010. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). ORDER Entitlement to service connection for bilateral hearing loss and tinnitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs