Citation Nr: 1301343 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-41 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1961 to December 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington which, in pertinent part, denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus. A review of the Virtual VA claims processing system does not reveal any documents pertinent to the instant appeals. The Veteran withdrew his request for a RO (Travel Board) hearing in January 2010. Jurisdiction over the instant matters was transferred to the Milwaukee, Wisconsin RO in approximately August 2012. FINDINGS OF FACT 1. The Veteran has not been shown to have a current left ear hearing loss for VA purposes. 2. The preponderance of the evidence is against a finding that the Veteran currently suffers from right ear hearing loss as a result of a disease or injury incurred in active duty service. 3. The preponderance of the evidence is against a finding that the Veteran currently suffers from tinnitus as a result of a disease or injury incurred in active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claims, a letter dated in March 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. Since the Board has concluded that the preponderance of the evidence is against the claims for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records and various private treatment records are in the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The record indicates that the Veteran participated in a VA audiological examination; the results of which have been included in the claims file for review. This examination involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. Further, "where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law." See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Merits of the Claim A. Relevant Law and Regulations Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). See also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the above, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where a physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). Furthermore, sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. See 38 C.F.R. §§ 3.307, 3.309. In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno v. Brown, 6 Vet. App. 465, 469 Vet. App. (1994). See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, supra; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 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). With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 are less than 94 percent. See 38 C.F.R. § 3.385. Prior to November 1, 1967, audiometric testing for hearing by a service department were reported by a standard set by the American Standards Association (ASA). Since November 1, 1967, the standard for audiometric testing for hearing has been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The ISO standard is the current method for measuring hearing loss and used by VA to determine a hearing loss disability under 38 C.F.R. § 3.385. Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). See Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. See YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. See Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." See 59 Fed. Reg. 17,297 (April 12, 1994). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The Court has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Bilateral Hearing Loss A January 1964 service audiological evaluation revealed the following results, measured in decibels and converted to ISO units: Hertz 500 1,000 2,000 4,000 Right 15 10 10 5 Left 20 10 15 15 A December 1965 service discharge examination was negative for any relevant abnormalities and the Veteran's hearing was measured to be "15/15" bilaterally. The remaining service treatment records were negative for complaints, treatments or diagnoses related to hearing loss. An August 2007 private audiological examination revealed the following results, measured in decibels: Hertz 500 1,000 2,000 3,000 4,000 Right 45 20 10 10 20 Left 10 15 10 20 25 In an October 2009 substantive appeal, the Veteran wrote that he had been assigned to crash fire truck as a "rescue man" for six to eight months during his first duty assignment. He was also assigned duty as an aircraft handler on the hangar deck while aboard the U.S.S. Constellation and was exposed to constant live jet and various aircraft noise as a result. A September 2012 VA Hearing Loss Disability Benefits Questionnaire (DBQ) reflected the Veteran's reports that his hearing loss required others to repeat what had been said. Audiological examination revealed the following results, measured in decibels: Hertz 500 1,000 2,000 3,000 4,000 Right 40 20 10 15 30 Left 15 15 10 25 30 Word recognition testing was 94 percent bilaterally. Following this examination and a review of the Veteran's claims file, the examiner noted that the Veteran's left ear testing results did not meet the VA criteria for a disability. The examiner opined that the Veteran's right ear hearing loss was not at least as likely as not (50 percent probability) of greater caused by or a result of an event in service. The examiner noted that although a mild compensable loss was revealed at 500 Hertz, a low frequency hearing loss was not consistent with damage to the auditory system from acoustic trauma. Based on the foregoing evidence, the claim for service connection for left ear hearing loss must be denied as the record does not show a current hearing loss disability as defined by 38 C.F.R. § 3.385. As the Veteran does not have a left ear hearing disability as defined by VA regulation, service connection may not be granted for left ear hearing loss. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (holding that there can be no valid claim for service connection in the absence of a current disability). The Veteran has current right ear hearing loss as his audiological testing results satisfy VA's statutory requirements for hearing loss. See 38 C.F.R. § 3.385. The Board notes that although the Veteran's military occupational specialty of Copy Reader is considered to have to have a low probability of noise exposure, he has alleged exposure while aboard the U.S.S. Constellation in other capacities. See Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus, Fast Letter 10-35, Dep't of Veterans Affairs Veterans (Sept. 2, 2010). The Board finds the September 2012 VA examination report to be highly probative evidence as to whether the Veteran's right ear hearing loss was related to his service. As noted, this opinion was based on a review of the record, consideration of the Veteran's own statements as to his symptoms and history, and the results of physical examination and diagnostic studies. This opinion was also supported by a rationale. Moreover, there are no contrary medical opinions of record. The Veteran was discharged from service in 1965 and did not complain of symptoms until more than 40 years later. This intervening lapse of so many years between his separation from service and the first documented manifestation of this claimed disorder is probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Board has considered the Veteran's own statements regarding the nature and etiology his right ear hearing loss. The Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his hearing loss symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). The Board acknowledges the statements from the Veteran with regard to his noise exposure experienced during service and finds such statements credible and concedes that the Veteran likely had noise exposure during service. He is also competent and credible to attest to his symptomatology associated with his right ear hearing loss. Based on the service treatment records and post-service treatment records, the VA examiner provided a negative etiological opinion, and the Board finds that the Veteran is not competent to attribute his current right ear haring loss to noise exposure, as he does not have the appropriate medical expertise. For such reasons, the Veteran's contentions as to in-service incurrence are outweighed by the opinion of the VA examiner which reflects that his right ear hearing loss is not due to noise exposure in service. In reaching this decision, the Board has considered the Veteran's arguments in support of his assertions that his right ear hearing loss is related to his active military service. However, the resolution of an issue that involves medical knowledge, such as the diagnosis of a disorder, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of the disorder or symptoms of the disorder subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disorder even where not corroborated by contemporaneous medical evidence). However, right ear hearing loss requires specialized training for a determination as to diagnosis, and is therefore not susceptible of lay opinions on etiology. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim of entitlement to service connection for bilateral hearing loss is not warranted. C. Tinnitus The Veteran also asserts that his tinnitus is the result of acoustic trauma sustained during service, specifically live jet and various aircraft noise. In this regard, it is noted that the Veteran is competent to identify the existence of his tinnitus. See e.g., Jandreau, supra (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the law testimony describing symptoms at the time supports a later diagnosis by a medical professional). Indeed, at his September 2012 VA DBQ examination, the Veteran reported experiencing tinnitus. Accordingly, a current tinnitus disability is established by the record. In terms of an in-service injury or disease, the Veteran's service treatment records do not refer to a complaint or finding of tinnitus. Further, the December 1965 discharge examination report indicated a normal clinical evaluation of the ears, and the whispered-voice and spoken-voice testing revealed that his hearing was within normal limits (15/15), bilaterally. Moreover, the record contains no competent evidence linking the Veteran's tinnitus to service. In fact, the September 2012 VA examiner expressly opined that it was less likely than not that tinnitus was a result of his military noise exposure and noted that there many causes of tinnitus, which was also often idiopathic. The examiner thus reasoned that reasoned that there was no record of tinnitus noted in the Veteran's service treatment records and that he was discharged from service in 1965. The Board assigns great probative value to the September 2012 VA opinion as it was rendered after a thorough review of the Veteran's claims file and because it was supported by sound rationale. There are no contrary medical opinions of record. The Veteran was discharged from service in 1965 and did not complain of symptoms until more than 40 years later. This intervening lapse of so many years between his separation from service and the first documented manifestation of this claimed disorder is probative evidence against his claim. See Maxson, supra. As indicated above, the Board acknowledges the statements from the Veteran with regard to his noise exposure experienced during service and finds such statements credible, and concedes that the Veteran likely had noise exposure during service. He is also competent and credible to attest to his symptomatology associated with his tinnitus. Based on the service treatment records and post-service treatment records, the VA examiner provided a negative etiological opinion, and the Board finds that the Veteran is not competent to attribute his current tinnitus to noise exposure, as he does not have the appropriate medical expertise. For such reasons, the Veteran's contentions as to in-service incurrence are outweighed by the opinion of the VA examiner which reflects that his tinnitus is not due to noise exposure in service. In reaching this decision, the Board has considered the Veteran's arguments in support of his assertions that his tinnitus is related to his active military service. However, the resolution of an issue that involves medical knowledge, such as the diagnosis of a disorder, requires professional evidence. See Espiritu, supra. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of the disorder or symptoms of the disorder subject to lay observation. See Jandreau, supra; Buchanan, supra. However, tinnitus requires specialized training for a determination as to diagnosis, and is therefore not susceptible of lay opinions on etiology. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert, supra. Thus, the Veteran's claim of entitlement to service connection for tinnitus is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs