Citation Nr: 1319906 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-07 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a disability manifested by jaundice. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran had recognized active duty service in United States Merchant Marine from November 1944 to August 1945. His DD-Form 214 reflects that he served aboard various vessels during that period as a "messman." He has active duty for VA purposes from November 1, to November 13, 1944; from May 18, to July 24, 1945; and from August 5 to August 15, 1945. This is the time certified as oceangoing service. No combat-related medals or decorations are recorded. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in Oakland, California that denied service connection for bilateral hearing loss, tinnitus and a condition manifested by jaundice. 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. Bilateral hearing loss was first indicated many years after discharge from service; there is competent clinical evidence of record that it is not related to service. 2. Tinnitus was first indicated many years after discharge from service and there is competent clinical evidence of record that it is not related to service. 3. There is no evidence showing that the Veteran has a disability manifested by jaundice. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. A disability manifested by jaundice was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in October 2007 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and affording a VA examination for service connection of bilateral hearing loss and tinnitus. The Board finds that this examination is adequate to render a determination as to these issues on appeal. The Board acknowledges that the Veteran was not provided VA examination for jaundice. As discussed in further detail below, there is no evidence in the claims folder of any disability or condition manifested by this symptom. Therefore, the requirements for VA examination are not met as to this matter. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board would also point out that the Veteran requested and was scheduled for a videoconference hearing in May 2013 but did not report. No reason was given for his failure to appear. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claims are ready to be considered on the merits. Pertinent Law and Regulations - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110,1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). For the showing of 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. 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 (2012). Where a veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946 and an organic disease of the nervous system (sensorineural hearing loss) becomes manifest to a degree of at least 10 percent within one year from the date of termination of active duty, such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of the disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). (Here the presumption does not apply as the Veteran does not have 90 days of continuous active duty.) When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is defined as doubt that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). 1. Service connection for bilateral hearing loss. There are no Merchant Marine or Public Health Service treatment records for review. Furthermore, the record contains no immediate post-service treatment records regarding either hearing loss or tinnitus. He has not indicated any continuous treatment for these disorders at any time following service. The Veteran filed a claim of entitlement to service connection for bilateral hearing loss and tinnitus in December 2006. Subsequently received in support of the claims was the report of an audiological evaluation performed at Kaiser Permanente in September 1998 that disclosed the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 60 70 LEFT 20 30 35 60 60 Speech discrimination was 88 percent in the right ear and 92 percent in the left ear. Statements dated in September 2008 were received from the Veteran's niece and four daughters attesting to their knowledge of his history of explosive noise from the firing of guns during service, and hearing loss that dated back many years. VA outpatient records dated in December 2007 indicate that the Veteran was a candidate for hearing aids due to hearing loss of many years duration. He related that his last hearing test had been 8-10 years before. It was reported that the appellant stated that during WWII enroute from the Marshall Islands to the Philippines, his ship had encountered a mine that they detonated intentionally as a precaution. The Veteran was afforded a VA audiology examination in November 2010. He was reported to have stated that he did not recall the onset of hearing loss because it had been so long, but did recall experiencing acoustic trauma in the Merchant Marine caused by a nearby mine explosion without hearing protection. He stated that as a civilian, he had noise exposure from loud equipment at work, including die-casting machines, without hearing protection. The appellant also reported a moderately loud buzzing in the ears. An audiogram was performed that revealed the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 65 60 65 LEFT 35 45 50 60 65 Speech recognition scores were 68 percent in the right ear and 76 percent in the left ear. The assessment was bilateral mild sloping to severe sensorineural hearing loss. It was noted that the appellant also reported bilateral tinnitus. The examiner indicated that the claims folder was reviewed and indicated that frequency-specific hearing threshold results could not be located in the claims folder and that therefore, the opinion would be based on the Veteran's report and audiological findings. It was noted that the appellant reported a history of loud noise exposure in the Merchant Marine between 1944 and 1945 and as a civilian. It was related that he also reported bilateral tinnitus that was commonly associated with noise-induced hearing loss. The examiner stated that the appellant could not recall when his hearing loss and tinnitus began and noted that he had been discharged from the military over 60 years before. The examiner opined that given the length of time that had elapsed between the time of discharge and the filing of the claim, it was his opinion that hearing loss and tinnitus were most likely caused by other factors (including other medical conditions and significant civilian noise exposure) and less likely cause by military acoustic trauma. Extensive Kaiser Permanente records dated between 2006 and 2009 reflect no treatment for hearing loss or tinnitus. Upon review of systems in August 2008, it was indicated that evaluation of the ears, nose and throat was negative for symptoms that included hearing loss and tinnitus. Legal Analysis In this case, the evidence shows current diagnoses of both sensorineural hearing loss and tinnitus. Although the Board is presented with a nonexistent service record through no fault of the Veteran, his reported military duties likely presume some degree of noise exposure during active duty. Additionally, the Veteran is competent to assert the occurrence of in-service injury. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Similarly, as a layperson, he is competent to report that he has experienced ringing in his ears since service. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, while there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's statements as competent and credible as to his having had noise exposure in the military. In this case, however, the Board observes that although military treatment records are not available, evidence of diminished hearing is not documented until 1998. This is more than five decades after discharge from active duty. While there is lay evidence that the appellant has had hearing loss for many years, no medically sound basis has been presented attributing either hearing loss or tinnitus to service. Thus, the defect in the Veteran's claim is a lack of probative evidence of a nexus to service. The Board has carefully considered the evidence and the assertions that bilateral hearing loss is of service onset. Lay assertions 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007). A layman is competent to report that he experiences through the senses. See Layno. The Board does not dispute the Veteran's account of noise exposure during active duty. In this case, however, the more probative evidence indicates remote onset of hearing loss that is unrelated to service. In Hensley v. Brown, 5 Vet. App. 155, 159, the Court held that 38 C.F.R. § 3.385 (2012) does not preclude service connection for a current hearing disability where hearing might have been within normal limits at separation from service. The Veteran may still be able to establish service connection for hearing impairment by submitting evidence that it is causally related to service. 38 C.F.R. § 3.303(d); Hensley (1993). The Court found that there is no requirement that there be complaints or treatment in service before service connection for hearing loss can be granted. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Here, however, there is no evidence of hearing loss in proximity to service. Additionally, after review of the evidence, a VA audiologist took into account the Veteran's report of inservice noise exposure, the lack of documentation of hearing loss and tinnitus for so many years after service, his post service history of noise exposure, and his own reported statements as to inability to recall onset of tinnitus and hearing loss, in finding that both were less likely than not related to service. Moreover, it was determined that hearing loss and tinnitus were more likely caused by other factors that include other medical conditions and significant civilian noise exposure. Therefore, although lay evidence must be considered when a Veteran seeks disability benefits, the opinions of the skilled VA clinical professional who reviewed the record through the lens of his clinical expertise, are more probative than the appellant's more recent statements in this regard. The record contains no competent medical evidence to the contrary. In view of such, the Board concludes that the most probative evidence of record indicates that the Veteran's current bilateral hearing loss disability and tinnitus are unrelated to service. In this regard, the Board points out that should the appellant obtain clinical evidence that supports a finding of tinnitus or hearing loss related to service, VA would be obligated to reconsider this matter. However, for the reasons discussed above, service connection for bilateral hearing loss and tinnitus is not warranted at this time and must be denied. The preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Service connection for a disability manifested by jaundice. As indicated previously, the Veteran's military records are unavailable for review. Furthermore, the record, to include the extensive post service Kaiser Permanente clinical data, contains no post-service treatment records pertaining to jaundice or any disability of which it is a manifestation. The Board has carefully reviewed the evidence and has considered that the appellant is competent to report symptoms of jaundice. See Layno. The Board points out, however, that even if jaundice represents a distinct disorder, neither the Veteran nor the clinical evidence identifies any acceptable evidence, medical or otherwise, that tends to show current disease in this regard. There is only a vague statement attesting to such symptomatology. Congress specifically limits entitlement to service connection for disease or injury to cases where there is a disability. In the absence of proof of current disability due to disease or injury there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, the Federal Circuit has determined that in order for a veteran to qualify for entitlement to compensation under statute, the existence of a disability must be proved, and as having resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). The Board accepts that the Veteran may have had symptoms he characterizes as jaundice in the past. However, no identifiable pathology (injury or disease) is demonstrated at this time to account for his vague complaints in this regard. The only evidence in support of the claim is the Veteran's own statement that he has a disability manifested by jaundice without more. However, the evidence does not reflect any disability, disease, or residuals of injury in this regard for which service connection may be granted. As such, the preponderance of the evidence is against the claim of entitlement to service connection a disability manifested by jaundice and there is no doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. Service connection for a disability manifested by jaundice is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs