Citation Nr: 1312680 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-15 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1981 to December 1984. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that it contains no additional documents pertinent to the issues on appeal. FINDINGS OF FACT 1. Bilateral hearing loss disability is not shown to have been present in service or at any time thereafter. 2. Evidence does not reflect the presence of tinnitus during service or for many years thereafter and fails to link the Veteran's current tinnitus to military service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a May 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in March 2009. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, and the report of a VA examination. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where there is a chronic disease, such as sensorineural hearing loss, shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, 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). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease, such as sensorineural hearing loss, to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus has been defined as a ringing, buzzing noise in the ears. See YT v. Brown, 9 Vet. App. 195, 196 (1996); Kelly v. Brown, 7 Vet. App. 471 (1995) (citing Dorland's Illustrated Medical Dictionary 1725 (27th ed. 1988)). Due to the subjective nature of the disorder, the Veteran, as a layperson, is competent to testify as to the presence of the disorder. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a Veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis: Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss, which he argues he now has as a result of working with heavy equipment without hearing protection while in the service. The Veteran's service treatment records show that he underwent audiometric testing in August 1981, May 1982, and November 1984. The August 1981 test results, performed before the Veteran entered active duty service, showed puretone thresholds ranging from 0-10 decibels at 500-4000 Hertz for both the right and left ears. Subsequent testing revealed puretone thresholds of 0-15 decibels at 500-4000 Hertz for the right and left ears in May 1982 and puretone thresholds of 0-10 decibels at 500-4000 Hertz at the Veteran's May 1984 separation examination. These findings show that the Veteran's bilateral hearing was entirely within normal limits throughout his active duty service. In July 2008 the Veteran was afforded a VA audiological examination. The Veteran reported that he operated heavy equipment and worked in the motor pool for three years in the service. The Veteran stated that after service he worked as a truck driver for 18 years. Audiometric testing was performed, and revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 15 10 15 15 LEFT EAR 5 10 5 15 15 Speech recognition testing revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The VA examiner found that the Veteran's normal tympanograms were consistent with normal middle ear function bilaterally and diagnosed the Veteran with "hearing within normal limits bilaterally." The examiner also noted that the Veteran's service treatment records showed that his hearing was within normal limits in the service as well. The Veteran's VA treatment records are entirely silent for any complaints or treatment related to a hearing loss disability. The Veteran has also never indicated that he has sought treatment for hearing loss at any time since his separation from service. The Veteran has submitted no evidence of any kind which indicates that he has a hearing loss disability, nor has he presented any evidence, including lay evidence, of experiencing difficulty with his hearing. As is clear from the above, the Veteran has not in the past and does not currently exhibit "hearing loss disability" per VA regulatory criteria. See 38 C.F.R. § 3.385. Nor for that matter has the Veteran ever exhibited difficulty with hearing in either ear according to any of the current evidence of record at any time during the course of this appeal. The July 2008 audiological examination was performed by a competent, qualified VA examiner with full access to the Veteran's claims file and medical records. There has been no indication that the examination performed was not fully adequate for the purpose of determining the merits of the Veteran's claim and is deemed by the Board to be an accurate and highly probative picture of the whether the Veteran's bilateral hearing loss rises to the level of a disability for VA purposes. VA regulation specifically defines the parameters of a hearing loss disability for compensation and pension purposes, and the Veteran in this case does not meet the criteria for establishing a current disability. Id. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). As the audiometric testing during the course of the claim does not reflect a hearing loss disability in either the right or the left ear for VA purposes, service connection is not warranted. The Board acknowledges that the Veteran is competent to describe experiencing extremely loud noise during military service and any symptomatology regarding perceived hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a lay person, his opinion as to the degree of hearing loss is not a competent medical opinion. In this regard, determining the degree of hearing loss requires audiological examination and testing by a qualified professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As noted above, the most probative evidence of record comes from the recent audiological examinations the Veteran has undergone rather than from his subjective assessment of the extent of his hearing loss. For the foregoing reasons, the Board finds that the preponderance of the evidence demonstrates that the Veteran's bilateral hearing loss has not at any time during this appeal been shown to meet the criteria for a hearing loss disability for VA purposes, and the claim for service connection is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Analysis: Tinnitus The Veteran also alleges that his current tinnitus was likely caused by the loud noises he was exposed to in the service while working with heavy equipment without hearing protection. The Veteran's DD Form 214 indicates that the Veteran worked as a motor transport operator. The Veteran's service treatment records are silent for any complaints or treatment of tinnitus or any other hearing-related complaints. As was discussed above, the Veteran's audiometric testing performed in August 1981, May 1982, and November 1984 showed hearing within normal limits. At the Veteran's July 2008 VA audiological examination, he reported having tinnitus in his right ear which occurs daily, lasts for 30-45 minutes or longer, and gives him headaches. The Veteran did not know when the tinnitus first began. The examiner diagnosed the Veteran with subjective tinnitus, right ear, but ultimately found that it was not related to the Veteran's service. The examiner noted that there was no evidence of complaints of tinnitus during or immediately after service and that all of his audiograms in service "showed normal puretone thresholds, even at 6000 Hertz, a frequency often considered to be a 'red flag' for noise-induced hearing damage and tinnitus." He also noted that the Veteran's entrance and separation audiograms documented that his "hearing did not significantly change during his military service." The Veteran's VA treatment records contain no complaints or treatment related to tinnitus, and the Veteran has not asserted that he has ever been treated for tinnitus or other hearing-related disorder at any time in the past. In this case, the Board accepts that the Veteran likely currently has tinnitus, due to the subjective nature of the disorder which the Veteran, as a layperson, is competent to self-identify. See Falzone, 8 Vet. App. at 403. However, looking at the evidence above, the evidence fails to show that this disability is related to his military service, and therefore the preponderance of the evidence is against the Veteran's claims of service connection for tinnitus. The Board notes that the only professional medical opinion to address the relationship, if any, between the Veteran's tinnitus and his military service weighs against the claim. To the extent the Veteran believes that his current tinnitus is related to noise exposure during service, the Board finds the medical opinion of the VA examiner on this question to be of greater probative value than the Veteran's lay assertions. In this regard, there is no indication that the Veteran has any specialized knowledge in audiological disorders, and as a layperson, he is not competent to provide a medical opinion on the etiology of his current tinnitus. The examiner noted that hearing loss usually found consistent with noise induced tinnitus was not present. The question of whether tinnitus arising many years after significant noise exposure is due to that prior noise exposure requires medical expertise to determine. See Jandreau, 492 F.3d at 1376-77. The July 2008 VA examiner provided sufficient rationale and explanation for the opinion that the Veteran's tinnitus not likely to have been caused by or a result of in-service noise exposure. The opinion was provided following claims file review and examination of the Veteran and is fully adequate for the resolution of the current question regarding the connection of the Veteran's tinnitus to service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Thus, the July 2008 opinion is entitled to the greatest probative weight, and is found by the Board to be far more probative than the Veteran's lay assertions as to the etiology of any current tinnitus. The Veteran has also not asserted that he experienced tinnitus while in the service or even that he was aware when his tinnitus first began. The first medical evidence of record which indicates that the Veteran has tinnitus is his July 2008 examination, which is almost 24 years after the Veteran's separation from service. Thus, the Board finds that the Veteran has failed to provide any evidence of continuity of symptomatology that has existed since the Veteran's separation from service. The Court has indicated that the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of a low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (prolonged periods 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). Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for tinnitus. The Board also points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In sum, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's tinnitus was not shown in service or for many years thereafter, and tinnitus has not been shown by competent and probative medical evidence to be causally related to his active service. While the Board has considered the Veteran's lay contentions as to the etiology of his current tinnitus, the Board has accorded the medical examination of record greater probative value. Accordingly, service connection for tinnitus is not warranted. In reaching this conclusion above the Board has again considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs