Citation Nr: 1306805 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-20 005 ) DATE ) ) Received 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: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1950 to July 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded the Veteran's claims for additional development in July 2012. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has bilateral hearing loss that is at least as likely as not related to his period of active duty service. 2. The Veteran does not have tinnitus attributable to his period of active duty service. CONCLUSIONS OF LAW 1. The Veteran has bilateral hearing loss that is the result of disease or injury incurred in active duty service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated during active duty service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in June 2009, September 2009, February 2010, and August 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the January 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination and addendum opinion with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's service treatment reports reflect that the Veteran was not administered audiometric testing at his June 1950 entrance examination or his July 1953 separation examination. Whispered voice tests administered at the Veteran's entrance and separation examinations were 15/15. The records do not reflect any reports, findings, or treatment for hearing loss or tinnitus. The Veteran claims that he has bilateral hearing loss and tinnitus as a result of his active duty service. Specifically, he contends that these disabilities resulted from exposure to acoustic trauma such as small arms fire and explosions while assigned as a Navy hospital corpsman with the 1st Marine Division during the Korean War from July 1952 to July 1953. The Veteran's DD214 and personnel records confirm that he served in the United States Navy, that he was awarded the Korean Service Medal, and that he successfully completed hospital corpsman class "A" training. These records also show that the Veteran arrived in Inchon, Korea on July 5, 1962, and that he was assigned to the 1st Marine Division, FMF. The Boards finds no reason to doubt the veracity of the Veteran's contention regarding his exposure to acoustic trauma while stationed in Korea, as he has alleged. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran submitted various statements indicating that he believed that his hearing loss and tinnitus resulted from acoustic trauma in service. He also reported that he first noticed a hearing problem when he started college immediately after his discharge from service. VA outpatient treatment reports reflect that the Veteran reported trouble hearing and tinnitus in June 2008. He was assessed with mild sloping to profound hearing loss and impressions for hearing aids were obtained. Hearing aids were issued to the Veteran in July 2008. At an April 2010 VA audiometric examination, the Veteran reported in-service noise exposure to small arms fire and explosions during Korea. He denied occupational and recreational noise exposure with the exception of the occasional use of an electric drill and seasonal lawn mowing. The Veteran reported constant bilateral tinnitus. He was unable to report the date and circumstances of the onset of tinnitus but he denied having tinnitus during college immediately following service. He indicated that he noticed his hearing problem when attending college immediately after separating from service. Audiometric testing revealed puretone thresholds of 25, 45, 55, 75, and 85 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz, and 35, 45, 55, 75, and 85 decibels for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition scores were 68 percent in the right ear and 46 percent in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. The examiner indicated that he was unable to provide an opinion as to whether the Veteran's hearing loss and tinnitus were related to his active duty service. The examiner noted that there were no frequency specific audiometric test results indicating a hearing loss or significant change in hearing at the time of the Veteran's separation from service. He concluded that it would be speculation to suggest a frequency specific hearing loss was present at the Veteran's entry or separation from service. He also noted that while tinnitus and hearing loss are usually co-existent, there were no audiotmetric test results to determine hearing loss or a significant change in hearing status and that the Veteran denied tinnitus in college when he first noticed his hearing loss. An addendum opinion was obtained from the April 2010 VA examiner in August 2012. The examiner indicated that the Veteran reported that his tinnitus was initially noted sometime after he separated from active duty service. He was not able to provide a specific date for the onset of his tinnitus but he denied tinnitus while he was in college. Based on the Veteran's statement, the examiner indicated that there does not appear to be a nexus between the onset of tinnitus and an inservice event. He concluded that it was therefore less likely than not that the Veteran's tinnitus is caused by or as a result of an inservice event. With regard to hearing loss, the examiner indicated that he was still unable to provide an opinion as to etiology without resort to mere speculation. He cited to two medical treatises to support his belief that he was not able to provide an etiological opinion. Specifically, he found that it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service in the absence of audiograms obtained at the beginning and end of military service. A. Hearing Loss Impaired hearing will be considered a disability for VA purposes when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 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 (2012). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss. With regard to the Veteran's bilateral hearing loss, the Veteran's statements and testimony in support of his claim are construed as alleging a continuity of symptoms since active service. The Board finds that he is competent to give evidence about what he experienced. For example, he is competent to discuss his current symptoms of hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The only medical opinions of record do not include any probative findings. However, a current diagnosis of bilateral hearing loss is of record and the Veteran has alleged in-service acoustic trauma. As noted, the Veteran is competent to testify to exposure to acoustic trauma in service. Resolving all reasonable doubt in the Veteran's favor, the competent and credible evidence creates a nexus between the Veteran's current hearing loss and active service. Therefore, service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Tinnitus In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for tinnitus. As noted, the Veteran is competent to testify to exposure to acoustic trauma in service. However, there is an absence of any specific report of tinnitus until the Veteran was seen at VA in June 2008. While the Veteran has indicated that he has longstanding tinnitus, he indicated that he did not experience tinnitus in college immediately after his discharge from service. The Board finds that the evidence does not include competent evidence showing a relationship between the Veteran's current tinnitus and his period of active duty service. The Board acknowledges that the Veteran is competent to report that he was exposed to acoustic trauma in service and experienced tinnitus after service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). However, although the Veteran contends that he has tinnitus related to his service, he has submitted no competent medical evidence or opinion to corroborate that contention. 38 C.F.R. § 3.159(a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinion is insufficient to provide the requisite etiology of tinnitus because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2011); Duenas v. Principi, 18 Vet. App. 512 (2004) (layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding tinnitus being related to noise trauma during his active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The Board finds the VA audiological evaluation and addendum opinion to be more probative as to the etiology of the Veteran's tinnitus. The examiner provided a rationale to support the opinion. While the examiner noted that hearing loss and tinnitus usually coexistent, the Veteran specifically denied tinnitus immediately after his discharge from service when he noticed his hearing problems. The Board finds that to be sufficient rationale for the opinion. The Veteran has not submitted any competent evidence which provides a basis for the conclusion that tinnitus is related to his period of service. The only competent medical opinion of record indicates that the Veteran's tinnitus is less likely than not related to active service. Consequently, the Board finds that service connection is not warranted because the medical evidence associated with the claims file does not establish that tinnitus is etiologically linked to the Veteran's active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs