Citation Nr: 1303765 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-36 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to November 1963. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's file on the "Virtual VA" system, to ensure complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran does not have a "hearing loss" disability in either ear as defined by 38 C.F.R. § 3.385. 2. A preponderance of the evidence is against a finding that the Veteran's current tinnitus is related to his period of active military service, to include acoustic trauma therein, and against a finding that tinnitus, as an organic disease of the nervous system, was manifested to a compensable degree within one year after separation from service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Tinnitus was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 12 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the 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. In the present case, the Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. He contends that his current bilateral hearing loss and tinnitus were caused by acoustic trauma sustained during his period of service in the United States Army Corps. More specifically, he asserts that he developed hearing problems due to exposure to hazardous noises while performing duties as a Field Communication Specialist. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Further, 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms, because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted by or on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Hearing Loss For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations, however, do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Further, where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). In this case, the Veteran's STRs include an August 1961 pre-induction examination which shows that he demonstrated a hearing acuity of 15/15 bilaterally on the whispered voice test. The Veteran underwent audiological evaluation on separation in October 1963. It is noted that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Accordingly, for the audiological evaluations listed above, the Board has converted the ASA units to ISO units in parentheses below. In October 1963, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) X 5 (10) LEFT 5 (20) 5 (15) 5 (15) X 5 (10) These findings show that the Veteran's hearing acuity was within normal limits (even after conversion from ASA to ISO units) under VA regulation. See 38 C.F.R. § 3.385. In his September 2010 substantive appeal, the Veteran cited to a 2005 National Academies of Science Institute of Medicine (IOM) report in support of his claim. The IOM was charged with addressing issues including the time course of hearing loss following noise exposure, delayed onset noise-induced hearing loss, and what hearing tests are adequate to assess noise-induced hearing loss. According to the Veteran's representative, the IOM report concluded that the military has not provided hearing examinations sufficient to assess noise-induced hearing loss. The IOM specifically recommended that the tests include measurements above the 6000Hz level in order to document the characteristic "notch" associated with noise-induced hearing loss during service. Thus, because adequate tests were not conducted for noise-induced hearing loss during service, audiologist who have provided negative linkage opinions in this case have no basis to conclude that noise-induced hearing loss was not demonstrated in service. In July 2012, the Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) hearing loss and tinnitus examination in July 2012 at which time the audiologist indicated that the test results were not reported since they were considered to be invalid. The examiner found that there was poor consistency in the Veteran's responses and poor inter-test agreement. There was also poor agreement between observed communication ability and the Veteran's responses to pure tone stimuli. The Veteran was re-instructed and re-tested several times without improvement. While pleasant in demeanor, the examiner concluded that he failed to comply with the test procedures. In an August 2012 report, the Veteran's private audiologist noted that he served as a Field Communication Specialist and stated that he was required to lay communication lines in the field. He stated that he was required to maintain those lines and was required to work around heavy machinery and generators during basic training. He was required to go to the firing range and stand about 15 feet from fellow service members as they discharged their weapons. The Veteran stated that he also used grenades and described his basic training as "war field training." He stated that he experienced ringing in his ears and decreased hearing, especially after the firing range and claimed that hearing protection was not provided. However, his decreased hearing acuity was not reported to his supervisors at that time. Post-service, the Veteran reported that he worked in sales and denied any occupational or recreational noise exposure. He also denied any family history of hearing loss, ear pain or ear surgery, and any dizziness or loss of balance. At that time, he complained of tinnitus and decreased understanding. The audiologist indicated that she reviewed the Veteran's discharge documents, personnel file, and his STRs. She noted that on entrance examination, he was administered a whisper voice test which did not accurately assess high frequency speech information and could neither prove nor disprove normal hearing. Upon separation, an audiometric evaluation was conducted. These results showed hearing within normal limits. The audiologist evaluated him using the Maryland CNC word tests, the results of which indicated a severe hearing loss for both ears. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 60 75 80 80 LEFT 80 85 85 85 95 Speech audiometry revealed speech recognition ability of 8 percent in the right ear and 0 percent in the left ear. The audiologist noted that the Veteran did not respond to the word recognition task. Directions were restated twice and were clarified, however, no responses were given. The audiologist stated that although the Veteran's in-service audiology exams indicated hearing to be within normal limits, it was documented in the histopathology literature that outer hair cell damage in the cochlea occurred prior to an individual ever showing a threshold shift on an audiogram. Therefore, based on the history provided and results of these exams, she opined that the Veteran's bilateral tinnitus and hearing loss are more likely than not related to his military noise exposure and it may have worsened as a civilian. She cited to medical treatises which indicate that the cause of tinnitus can usually be determined by finding the cause of any coexisting hearing loss. In this particular case, she opined that the Veteran's tinnitus can likely as not be attributed to the same etiology of his hearing loss, i.e., in-service exposure to noise. According to the American College of Occupation and Environmental Medicine noise exposure without hearing protection can cause and/or contribute to noise-induced hearing loss, acoustic trauma, and tinnitus in individuals. The Veteran underwent a second VA DBQ hearing loss and tinnitus examination in October 2012. At that time, the Veteran's speech reception thresholds were at 30 decibels in the right ear and 35 decibels in the left ear. Pure tone thresholds were averaging 66 decibels bilaterally, therefore these were not consistent with the speech reception thresholds. The Veteran was given a list of words at 60 decibels and scored 88 percent in the right ear and 96 percent in the left ear. These were presented below the pure tone average therefore inconsistent. He had normal tympanograms. These results indicated nonorganic hearing loss and were found invalid test results. The examiner explained that although the Veteran was pleasant in demeanor, the test results were again inconsistent and did not appear to reflect the Veteran's maximal effort. The Veteran was reinstructed and encouraged throughout testing with no improvement in his admitted responses. There was poor interest reliability; he was able to answer questions without problems well below admitted thresholds. The examiner opined that the Veteran most likely had some hearing loss, but not to the degree that he was admitting. Nonorganic hearing loss is defined as "hearing loss that lacks any organic lesion." See Dorland's Illustrated Medical Dictionary 836 (31st ed., 2007). It is also defined as a conscious or unconscious effort to exaggerate a hearing loss or to fabricate a hearing loss where none existed. Indeed, this is evidenced by the examiner's inability to obtain valid audiometric results in the left or right ear at the time of examination. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also, greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board finds that the Veteran had not had a hearing loss disability in either ear for VA compensation purposes at any time during the pendency of the appeal. In this regard, the Board has afforded more weight to the July 2012 and October 2012 VA DBQ examinations. Both examiners reported inconsistent findings and noted the Veteran's failure to comply with test procedures. The October 2012 DBQ examiner opined that the Veteran's test results indicated nonorganic hearing loss and are invalid. The examiner also noted that pure tone thresholds averaged 66 decibels bilaterally and were therefore inconsistent with the speech recognition thresholds. While the Veteran was reinstructed and encouraged throughout testing there was no improvement in his admitted responses. The October 2012 VA examiner clearly had the opportunity to review the Veteran's claims folder which included the July 2012 VA examination and August 2012 private report which diagnosed bilateral hearing loss. In addition, the examiner provided a thorough explanation of the findings which supported the diagnosis of nonorganic hearing loss. Accordingly, the Board accepts as probative evidence on the question of a medical diagnosis, the findings noted by the July 2012 and October 2012 examiners, as well as the opinion of the October 2012 examiner. Simply stated, based on a detailed review of all medical evaluations and the statements for the Veteran, the Board must regrettably find that the Veteran is not accurate in terms of informing examiners the nature and extent (if any) of his hearing loss and that the Veteran is clearly exaggerating his hearing loss to health care providers. The Board acknowledges that the August 2012 private audiologist diagnosed a severe bilateral hearing loss which she related to the Veteran's service. However, this opinion is of little probative value as it is based, in part, on questionable word recognition testing. In this regard, the audiologist reported word recognition scores of 8 percent for the right ear and 0 percent for the left ear, but noted that the Veteran did not respond to the word recognition tasks even after directions were twice restated and after further clarification. Coupled by the fact that the VA examinations, performed on two separate occasions, one month prior and two months subsequent to the private audiology examination, yielded unreliable findings or a diagnosis of bilateral hearing loss for VA purposes, the Board assigns little probative weight to the diagnosed bilateral hearing loss which appears to be sufficient for VA purposes since it is partly based on questionable objective findings, namely the word recognition scores. In addition, while the audiologist stated that she had the opportunity to review the Veteran's "discharge documents, personnel file, and all his [STRs]," it does not appear that the audiologist reviewed the July 2012 VA DBQ examination which, like the private examination, also yielded unreliable findings upon which to diagnose hearing loss. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board notes that the private audiologist stated that it is documented in the histopathology literature that outer hair cell damage in the cochlea occurred prior to an individual ever showing a threshold shift on an audiogram. However, there is no indication that she examined the Veteran's ears as she provided no clinical findings to support her opinion. Rather, this statement seems to be made on the premise that outer hair cell damage in the cochlea can occur in individuals as a whole as opposed to a determination that the Veteran himself sustained such damage which caused his hearing loss, which further lessens its probative value. The Board acknowledges that the Veteran has cited to an IOM study in support of his bilateral hearing loss claim. However, there is no indication that the findings made in the study pertain to the Veteran's manifestation of bilateral hearing loss or relate this disability to his service. As a lay person, relying on a generic medical treatise, the Veteran is not qualified to render a medical opinion as to the etiology of his claimed neuropathy of the extremities. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim, but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). There is no indication that the IOM provided anything other than generic statements and therefore lacks probative value in the consideration of the Veteran's claim. While the Veteran is competent to describe his subjective complaints of hearing, any diminished acuity he experiences is not sufficient at this time to be considered a disability under VA regulations. Under 38 U.S.C.A. § 1131, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The fact that the Board has found clear evidence that the Veteran is exaggerating his problems associated with hearing loss to examiners only supports the finding that he does not have hearing loss for VA purposes (a person with "hearing loss" for VA purposes would have no reason to exaggerate his problem so clearly to examiners). The Board has also considered the Veteran's statements asserting a nexus between his exposure to acoustic trauma during his service and his hearing loss. However ,while the Veteran is competent to report a decrease of hearing acuity since his service, he is not competent to report that his bilateral hearing loss is related to his service because he does not have the education, training, or experience to offer a medical opinion. See 38 C.F.R. § 3.159(a)(1). Moreover, bilateral hearing loss is an internal process that cannot be directly observed and is determined through the use of audiometric testing and evaluation of the ears, which is distinguishable from those types of disabilities that are capable of direct observation, to include a separated shoulder, varicose veins, and flat feet. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). In this case, the current audiometric results fail to establish that he currently has bilateral hearing loss for VA compensation purposes. In this regard, the Board notes that the Veteran challenged the adequacy of his in-service hearing tests and evaluations. However, this argument lacks relevance because the Veteran has no current hearing loss disability at this time and the Board has found that he has provide invalid and inaccurate statements to examiners, undermining his credibility with the Board and providing evidence against this own claim. Thus, in summary, the most credible and probative evidence does not show a current hearing loss disability, so entitlement to service connection for bilateral hearing loss is denied. In reaching this conclusion, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant 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 in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus Unlike sensorineural hearing loss, which can be measured by objective audiometric testing, tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." See Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Because tinnitus is "subjective," its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). 1144781 In this regard, the Veteran's STRs are completely devoid of findings, complaints, symptoms, or any diagnosis of tinnitus. Post-service, while neither the July 2012 or October 2012 VA DBQ examiners diagnosed tinnitus, the Veteran was diagnosed with tinnitus on private audiology examination in August 2012 at which time the audiologist opined that although the Veteran's in-service exams indicated hearing to be within normal limits, it was documented in the histopathology literature that outer hair cell damage in the cochlea occurred prior to an individual ever showing a threshold shift on an audiogram. Therefore, based on the history provided by the Veteran and the results of his in-service exams, the audiologist opined that the Veteran's bilateral tinnitus is more likely than not related to his military noise exposure. She also opined cited to the American College of Occupation and Environmental Medicine noise exposure without hearing protection can cause and/or contribute to noise-induced tinnitus in individuals. In regards to the only medical opinion in favor of the Veteran's claim, it appears that he provided inconsistent statements with regard to the extent of his noise exposure during service. In this regard, the Board notes that while he provided the private audiologist a rather extensive history of noise exposure during his service, including acoustic trauma from heavy machinery and generators, a firing range, and grenades as a Field Communication Specialist, in a January 2013 Informal Hearing Presentation (IHP), the Veteran, through his representative, conceded that his military occupational specialty is conceded to have a low probability of exposure to hazardous noise. As such, the Board does not find the Veteran's assertion that his tinnitus is related to the kind of exposure to in-service noise related to the August 2012 audiologist is inaccurate. The Board finds regarding the Veteran's claim of service connection for hearing loss only supports this finding. As such, because the private audiologist's opinion was largely based on the Veteran's contention of considerable noise exposure during service which, according to the January 2013 IHP (his own representative), seems to be inaccurate in that he actually had a low probability of exposure to hazardous noise, the opinion has little probative value; as a medical opinion can be no better than the facts alleged by a veteran, and an opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). In addition, the Board notes that the Veteran was not diagnosed with tinnitus until August 2012, which is almost 49 years after the Veteran's discharge from active duty. Such a long interval of time between service separation and the earliest documentation of a disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no competent medical evidence of record linking any currently diagnosed tinnitus to his military service. In this case, the credible and probative evidence of record is against finding that any tinnitus is related to the Veteran's service and does not show that tinnitus manifested within one year of separation from service. The Board recognizes the sincerity of the arguments advanced by the Veteran that he has tinnitus that is related to his military service. However, while the Veteran is competent to report that he has had tinnitus since his service, he is not competent to report that his tinnitus is related to his service because he does not have the education, training, or experience to offer a medical opinion. See 38 C.F.R. § 3.159(a)(1). The Board finds that while the Veteran is competent to describe symptoms such as ringing in the ears, the question of whether the Veteran currently has tinnitus due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet). Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. Regarding any contention that he has had this problem since service, the Board finds that the best evidence in this case would provide evidence against such a claim. In this regard, it is important to note that the Board routinely grants service connection for tinnitus based on veterans' credible statements of noise exposure and problems since service, without, in some case, medical support. However, in such cases, the Veteran's overall credibility is crucial. Again, the Veteran's inaccurate statements to examiners regarding his hearing loss must be considered in this analysis. Therefore, based upon the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the claim, on a direct basis as well as on a presumptive basis (i.e., as a chronic disease), and the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990);38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and the Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Prejudicial error in VCAA notice has neither been alleged nor shown in this case, as will be explained below. The record reflects that the Veteran was provided all required notice by letters mailed in January 2010, prior to the initial adjudication of the claims. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. Service treatment records (STRs) and post-service medical evidence has been obtained. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. The Veteran has been afforded two VA DBQ examinations with respect to his claims. The Board acknowledges that the Veteran was not diagnosed with any current hearing loss disability or tinnitus on either examination, but has determined that VA has no duty to obtain an examination or medical opinion in response to either claim. In this case, the Veteran has not been diagnosed with a hearing loss disability per VA purposes. While there is competent evidence of the post-service presence of tinnitus, there is no competent evidence of tinnitus in service, no competent evidence of an in-service event or injury resulting in tinnitus, and no indication that the disability may be associated with the Veteran's active service. As he has not presented a prima facie case for service connection for bilateral hearing loss or tinnitus, a remand for an opinion is not required at this point. See 38 U.S.C.A. § 51l03A(d); 38 C.F.R. § 3.159(c)(4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). In sum, the duties to notify and assist have been satisfied. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs