Citation Nr: 1301726 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-33 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran had active duty from November 1967 to November 1969, including service in Vietnam. He was awarded the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 2009, a statement of the case was issued in August 2009, and a substantive appeal was received in September 2009. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss is not causally related to his active duty service. 2. There is no current tinnitus disability. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of this claim prior to its initial adjudication. Specifically, an April 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the letter also informed him of disability rating and effective date criteria. It is not alleged that notice was less than adequate. The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. The RO arranged for VA examination in May 2008. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). The Veteran contends that his tinnitus is related to his active duty service. His DD Form 214 documents that he was awarded the Purple Heart Medal for wounds received in combat. The RO has conceded combat participation as articulated in the September 2008 rating decision granting service connection for posttraumatic stress disorder; therefore, 38 U.S.C.A. § 1154(b) is applicable, and the Board finds that the Veteran was exposed to acoustic trauma during service. The threshold requirement that must be met in order to establish a claim for service connection is that there must be competent evidence (a medical diagnosis) of a current disability (or one that existed on or after the date of application for service connection). See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the 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 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, or 4000 Hertz 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. Analysis The Board first observes that the Veteran does in fact have current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. On VA audiological examination in May 2008, there were at least three frequencies with thresholds of 26 decibels or greater in both ears. The question is whether this current bilateral hearing loss disability is causally related to the Veteran's active duty service. Based on the Veteran's duties in Vietnam and his participation in combat, VA has conceded that he was exposed to acoustic trauma during service. This fact was also recognized by the May 2008 VA examiner. However, even with the fact of acoustic trauma during service having been conceded, the preponderance of the evidence is still against a finding that the current hearing loss is related to such acoustic trauma during service, or to any other event during service. There is no evidence of any decrease in hearing acuity during service. Service treatment records do not include a report of any entrance examination. However, service records do document treatment for a variety of unrelated complaints as well as hospitalization for war-related wounds to the right arm. There is no reference in any of these records to any complaint or finding of decreased hearing acuity. The report of separation examination in June 1969 shows that audiological examination at that time showed threshold levels of 0 decibels at all tested frequencies of the right ear. Threshold levels in the left ear ranged from 0 decibels to 10 decibels. Based on the available service records, there is no evidence of any upward shift in threshold levels to suggest any decrease in hearing acuity during service. The Board finds it highly significant that the Veteran did not claim service connection for hearing loss (or for tinnitus) when he filed a claim for other disabilities in 1970 after discharge from service. If he was in fact suffering from hearing loss (or tinnitus) at that time, it is reasonable to expect that he would have included such on his VA claim if he believed such was related to service. Moreover, he did not voice any complaints of hearing loss (or tinnitus) at the time of a VA examination in September 1970. The fact that hearing loss was not documented during service or within one year of discharge is not necessarily fatal to the Veteran's claim. As a layperson, the Veteran is competent to report hearing loss and tinnitus. However, to the extent that he may be asserting that he had hearing loss and tinnitus during service and continuing from service, the Board finds such assertions not credible. As noted above, the Veteran's actions during service (by failing to report hearing loss or tinnitus to medical providers when he had the opportunity to do so) are inconsistent with any current contention that he has suffered hearing loss and tinnitus during service. His assertions are also inconsistent with his actions in regard to the 1970 claim and examination. Following service there is then a long period of time with no pertinent complaints. At a January 2008 VA consultation, the Veteran voiced complaints of gradual hearing loss. This is inconsistent with any attempt to show a link to service by showing a continuity of pertinent symptoms since service. Finally, the 2008 VA examiner has rendered an opinion that the hearing loss is not related to service. The board finds this opinion to be supported by the overall evidence of record. Again, the examiner knew that the Veteran has noise exposure during service. The examiner also had knowledge of the Veteran's service treatment records as well as the results of the separation audiological examination. The Board finds the opinion to be entitled to considerable weight. With regard to the tinnitus claim, the preponderance of the evidence is against a finding of current tinnitus disability. The STRs are silent for complaints, findings or treatment referrable to tinnitus. The postservice factual evidence of record does not show (or suggest) that the Veteran has (or during the appeal period has had) tinnitus. While he has claimed that he has tinnitus as a result of acoustic trauma in service, his postservice treatment records are silent for complaints or findings of tinnitus. Moreover, on VA audiology examination in May 2008 he expressly denied a history of noise present in his ears, including on the day of the examination. Although tinnitus is a disability capable of subjective lay observation, given that the Veteran expressly denied having a history of such disability, a finding that he has such disability cannot be made. In the absence of proof of a present disability; there can be no valid claim for service connection. Notably, there is also no competent evidence that suggests such disability might be related to his service. Consequently, there is no valid claim of service connection for tinnitus. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the Veteran has been represented with regard to his tinnitus claim. Moreover, he was informed in the statement of the case that this claim was being denied in large part based on his denial of tinnitus to the VA examiner. Neither the Veteran nor his representative has attempted to explain the denial of tinnitus. The record as it stands simply does not show current tinnitus disability. Should the Veteran begin experiencing tinnitus in the future, then he may reopen his claim and the question of a nexus or link to service will be considered. However, without evidence of current tinnitus disability as defined by regulation, the appeal must be denied at this time. With regard to both issues, the Board again recognizes the Veteran's participation in combat. His statement as to noise exposure have thus been accepted pursuant to 38 U.S.C.A. § 1154(b). However, there does not appear to be any evidence showing that the Veteran has claimed that he began experiencing hearing loss and/or tinnitus during combat. Moreover, for reasons stated above, the overall evidence is against a finding of a continuity of symptoms since service. ORDER The appeal is denied as to both issues. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs