Citation Nr: 1326274 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-03 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran had active military service from August 1966 to August 1968. His awards and decorations include the Combat Infantry Badge and a Bronze Star Medal for meritorious service in ground combat. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Although the Veteran requested a hearing before the Board, he withdrew that request in September 2011. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran's tinnitus originated during his active service. 2. Hearing loss disability was not present in either ear until more than one year following the Veteran's discharge from service, and the Veteran's current bilateral hearing loss disability is not etiologically related to his active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by active duty, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303; 3.307; 3.309; 3.385 (2012). 2. Tinnitus was incurred in active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and 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. 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 record reflects that the Veteran was provided all required notice in a letter sent in August 2008, prior to the initial adjudication of the claims. In addition, as explained below, the evidence currently of record is sufficient to substantiate the claim for service connection for tinnitus. Therefore, no further development is required before the Board decides the tinnitus claim. With regard to bilateral hearing loss, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's VA treatment records have been obtained, and the Veteran has not alleged receiving any private treatment for his hearing loss or tinnitus. Additionally, the Veteran was afforded a hearing before the RO, and scheduled for hearing before the Board, but withdrew his request for a Board hearing. The Board notes that the Veteran's service treatment records (STRs) are unavailable. The claims file reflects substantial efforts by the RO to obtain these records, including multiple requests to the National Personnel Records Center (NPRC). However, the NPRC has unambiguously informed the RO that the Veteran's STRs are not available. Additionally, the Veteran has stated that he was not given a separation physical, and, further, he has not indicated that he sought medical assistance for his hearing loss or tinnitus while in service. Based on the foregoing, it is clear that further requests for service records for the Veteran would be futile. The Veteran has been informed that his service records are unavailable. In cases where the STRs are unavailable through no fault of the claimant, VA has a heightened duty to assist a veteran in developing his claims. O'Hare, 1 Vet App. 367. However, the threshold for allowance of a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). The Veteran was also provided with VA examinations to determine the nature and etiology of his hearing loss. The Board has determined that the report of the most recent VA examination is adequate for adjudication purposes. The record reflects that the examiner examined the Veteran and reviewed his pertinent history. Although the examiner were unable to provide an opinion concerning the etiology of the Veteran's hearing loss, he properly explained why he was unable to do so. In this regard, the Board has considered the Court's holding in Jones v. Shinseki, 23 Vet. App. 382 (2010), that, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate, as a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability Here, the examiner fully explained the bases for his conclusion. The examiner noted that even after considering the concession that the Veteran had in service noise exposure, and all the other available facts in the Veteran's file, any opinion rendered would be speculative because there was no actual evidence addressing the veteran's hearing acuity either in service or for many years after service. Specifically, the examiner identified, as necessary, information regarding, the Veteran's hearing acuity before service, at enlistment and, at separation; any in service complaint or treatment for hearing problems and; any record of complaint of or treatment for hearing problems for years after service. Given the thorough reasoning outlined by the VA examiner, the Board finds the examination report with addendum to be adequate under Jones. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran is currently seeking service connection for bilateral hearing loss and for tinnitus. He served on active military duty from August 1966 to August 1968. During service, the Veteran worked as a fire crewman, in an Infantry Division. His participation in combat has been confirmed. In January 2010, he testified at a hearing before the RO, asserting that while in service he was exposed to helicopter, mortar, and large caliber weapon noise, without wearing hearing protection. The Board has found the Veteran to be credible. In addition, his alleged noise exposure is consistent with the conditions of his combat service. Therefore, his exposure to acoustic trauma is conceded. A. Tinnitus In August 2008, the Veteran filed a claim for service connection for tinnitus. He explained that he first experienced ringing in his ears while on the rifle range during basic training in 1966. He further indicated that the ringing in his ears worsened during service as a result of his exposure to acoustic trauma while serving in Vietnam. The September 2009 and December 2010 VA examination reports also indicate that the Veteran consistently reported the onset of tinnitus during his time in service. Moreover, during his hearing, the Veteran once again reported that he first noticed tinnitus on the firing range. As such, given the consistent nature of the Veteran's statements, the Board finds them to be credible to establish the fact his tinnitus first began in service. The Veteran was provided VA audiological examinations in September 2009 and December 2010. The examiners confirmed the presence of tinnitus, and the Veteran reported that his tinnitus was bilateral and constant. However, no specific opinion was voiced as to the etiology of the Veteran's tinnitus, as the examiners noted that without the Veteran's STRs they would have to resort to speculation. Regardless, given that the Veteran has credibly described the onset of the symptoms, which have since been diagnosed as tinnitus, as occurring while he was in Vietnam, and since he has alleged that his tinnitus has continued since service to the present day, a medical opinion of record is not necessary to link the Veteran's currently diagnosed tinnitus to his military service. Rather, the Veteran's testimony alone is sufficient. There is no evidence indicating that the Veteran's tinnitus began subsequent to service or indicating that it is unrelated to service. Therefore, in view of the Veteran's combat service, his credible statements in support of the claim, and the medical evidence confirming that he has tinnitus, the Board finds that the evidence support of the claim is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for tinnitus. B. Bilateral Hearing Loss The evidence does not show and the Veteran has not alleged that he had hearing loss in either ear during service or until many years thereafter. In fact, in his 2008 claim for service connection, he stated that the onset of his hearing loss was in 1985. With respect to the etiology of the hearing loss, the Board notes that the Veteran was provided VA examinations in September 2009 and December 2010. In the reports of those examinations and addendums to the reports, the VA examiners stated that they were unable to provide an opinion, without resorting to speculation, regarding the etiology of the Veteran's hearing loss due to the missing STRs. In fact, there is no competent evidence of record linking the Veteran's hearing loss to in-service noise exposure. The Board recognizes that the Veteran might sincerely believe that his hearing loss is related to in-service noise exposure. Never the less, there is no indication that the Veteran has the expertise required to render a competent opinion concerning the etiology of his hearing loss. Therefore, the Board has determined that the Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value. Accordingly, the claim for service connection for bilateral hearing loss disability must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs