Citation Nr: 1237429 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-12 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active military duty from August 1974, to July 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The issues of diabetes, diabetic retinopathy, peripheral neuropathy, bilateral upper extremities, peripheral neuropathy, bilateral lower extremities, and kidney failure secondary to diabetes have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Granting the Veteran the benefit of the doubt, the evidence of record demonstrates that tinnitus is related to active service. 2. Hearing loss is not shown for VA compensation purposes. CONCLUSIONS OF LAW 1. Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. Bilateral hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated; hearing loss is not shown for VA compensation purposes. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 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, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 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 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A February 2007 letter that contained all of the required notice was sent to the Veteran prior to initial adjudication of his claim. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) have been obtained. Additionally, VA provided the Veteran with a medical examination that was adequate because the examiner reviewed the claims file, took a full medical history, conducted the appropriate diagnostic testing, and provided rationale for the ultimate medical opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Tinnitus The Veteran contends that his tinnitus is related to service, specifically due to exposure to acoustic trauma while serving as a radar controller, stationed above deck mounted guns on a vessel in the Navy. In his original December 2006 claim, June 2008 statement, and March 2009 VA Form 9, the Veteran stated that he was exposed to loud noise on a Navy vessel, developed ringing in his ears at that time, and the condition worsened. In regard to the complaints of worsening, the Veteran stated in his March 2009 VA Form 9 that it is difficult to sleep through the night, as the ringing is so loud. At his September 2012 Board hearing, the Veteran reiterated that he had ringing in his ears during service and that it never went away. The Veteran's military occupational specialty (MOS) was an ordnance mechanic. In this regard, the Veteran reports that he was exposed to loud noise of deck mounted guns whenever he went out on operations about every three months over a four year period, as related in the December 2006 claim, June 2008 statement, and September 2012 Board hearing. The Veteran also stated in his June 2008 statement that he was exposed to loud noise every 3 months when he would go to the range for weapons qualification training and that, whenever he was onboard his vessel, he was exposed to the constant loud noise of a running diesel engine. In his March 2009 VA Form 9 and the September 2012 Board hearing, the Veteran stated that he did not wear hearing protection while performing his duties. He explained that he was provided with some sort of foam hearing protection that he did not wear in order to be able to hear and communicate with other personnel during the performance of his duties. At the September 2012 Board Hearing, the Veteran also admitted working around loud noise post service, but stated that he always wore hearing protection in those instances. The Veteran's August 1974 physical induction examination, June 1978 separation physical examination, and service treatment records (STRs) are negative for complaints, treatment, or a diagnosis of tinnitus. A March 2007 VA audiological examination was obtained. The Veteran reported a history of bilateral tinnitus that was constant and manifested by a buzzing or fluttering sound that was as loud as a whisper and lasted for thirty to forty minutes per day. He also stated that the noise makes it difficult for him to sleep at night. The Veteran indicated that he was exposed to acoustic trauma during service, including working around firearms, machine guns, missile launchers, firing range, naval guns, helicopters, heavy artillery, ship engines, and electrical generators without hearing protection. The Veteran also reported post-service noise exposure in using power lawnmowers and farm equipment without the use of hearing protection. It was noted that the Veteran continued to perform military duties in the Navy Reserve, but that these duties were administrative and had minimal noise exposure. Upon examination and review of the Veteran's claims file, the examiner noted that tinnitus is a subjective complaint with no objective measures to validate its presence or absence. The examiner stated that the Veteran claimed onset of his tinnitus was in the 1980's, post service. The examiner opined that, because of the time lapse in onset, it was less likely than not that the Veteran's tinnitus was related to his military service. Further, the examiner opined that, because of the minimal noise exposure during the Veteran's Navy Reserve service, it was less likely than not that such service was related to the Veteran's tinnitus as well. The Board finds that the evidence of record supports service connection for tinnitus. First, there is a current disability because the Veteran has provided competent and credible evidence of ringing in his ears. See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Second, there is in-service incurrence because the Veteran has provided competent and credible evidence of ringing in his ears during service. Id. Furthermore, the Veteran's MOS indicates in-service noise exposure, which tends to support his statements of ringing in his ears during service. Third, the Veteran has provided competent and credible testimony that his tinnitus has continued since service discharge. See 38 C.F.R. § 3.303(b); see also Charles, 16 Vet. App. 370; Caluza, 7 Vet. App. 511. Accordingly, the evidence of record supports a finding of service connection for tinnitus. As such, the Board has determined that the Veteran is competent and credible in his report that he was exposed to acoustic trauma in service, experienced bilateral constant tinnitus in service, and has experienced continuous symptoms of tinnitus since service. Therefore, service connection for tinnitus is warranted. Bilateral Hearing Loss In addition to the laws and regulations cited above, sensorineural hearing loss, as an organic disease of the nervous system, will be presumed to have been incurred in, or aggravated by, active service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. 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 determination of whether the Veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Based on the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss, so the appeal must be denied. In a July 2011 statement, the Veteran stated that he has current hearing loss that has worsened over time. At the September 2012 Board hearing, the Veteran and his spouse testified that he has had continually progressive problems with hearing, such as having difficulty hearing his grandchildren, in a restaurant, or the television. The Veteran further testified that he began to notice difficulty hearing when he would have to turn his head to the side in order to better hear people speaking to him. The service medical records do not show that the Veteran complained of or was treated for a bilateral hearing loss during his service. An audiological evaluation at separation showed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 15 5 0 LEFT 10 10 10 10 10 A March 2007 VA audiological examination was obtained. At the examination, the Veteran complained of difficulty hearing "soft" sounds. The Veteran indicated that he was exposed to acoustic trauma during service, including working around firearms, machine guns, missile launchers, firing range, naval guns, helicopters, heavy artillery, ship engines, and electrical generators without hearing protection. The Veteran also reported post-service noise exposure in using power lawnmowers and farm equipment without the use of hearing protection. It was noted that the Veteran continued to perform military duties in the Navy Reserve, but that these duties were administrative and had minimal noise exposure. Pure tone thresholds, in decibels, were tested and provided as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 25 LEFT 15 15 20 20 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The Veteran was diagnosed with normal hearing 250 KHz to 8,000 KHz and normal middle ear function in the right ear and normal hearing 250 KHz to 3,000 KHz and 8000 KHz, with mild sensorineural hearing loss at 4,000 KHz and a normal tympanogram in the left ear. The examiner opined that military noise exposure was not responsible for hearing loss based on the thresholds the Veteran displayed and that his hearing was essentially normal. While the Board acknowledges the Veteran's statements alleging in-service noise exposure and his current and continual issues with hearing difficulty, the objective medical evidence of record reflects that hearing loss is not compensable for VA purposes. Specifically, the audiogram in the March 2007 VA examination showed essentially normal hearing for VA purposes. Because no current hearing loss for VA compensation purposes is shown, the appeal must be denied. In order to establish service connection, the evidence must show that there is a current disability. See 38 U.S.C. § 1131; see also Degmetich v. Brown, 104 F.3d 1328, 1329, 1330-31, 1333 (Fed.Cir.1997); McClain v. Nicholson, 21 Vet.App. 319, 321 (2007). As there is a preponderance of evidence against this claim, the benefit-of-the-doubt rule does not apply. ORDER Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to service connection for bilateral hearing loss is denied. ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs