Citation Nr: 1329682 Decision Date: 09/12/13 Archive Date: 09/24/13 DOCKET NO. 07-26 683 ) DATE SEP 12 2013 ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant’s case should take into consideration the existence of this electronic record. The Veteran had several periods of active service in the Air National Guard and Air Force between August 1959 and February 1965, including from November 1959 to February 1960, and from October 1961 to August 1962. See Official Statement of Service, March 2005; Report of Separation, February 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Montgomery, Alabama. A November 2005 rating decision continued the denial of the Veteran’s claim. In March 2011, July 2012, and March 2013, the Board remanded the Veteran’s claim for further development. Such development has been completed and associated with the claims file (electronic), and this matter is returned to the Board for further review. Please note 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). FINDING OF FACT The Veteran’s left ear hearing loss is not related to service; no left ear hearing loss is shown within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran’s claim of entitlement to service connection for left ear hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to “notify the claimant and the claimant’s representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim.” 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must “indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant.” 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran’s service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff’d sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran was provided with April 2005 and March 2011 VCAA letters that fully satisfied the duty to notify provisions. The letters informed the Veteran of what information or evidence was needed to support his claim, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The March 2011 notice also explained how VA assigns disability ratings and effective dates, and the Veteran’s claim was subsequently readjudicated by way of April 2012, January 2013, and July 2013 Supplemental Statements of the Case (SSOCs), such that any issue as to the timeliness of the March 2011 notice is moot. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes that VA’s duty to assist has been satisfied. The Veteran’s available service treatment records, VA treatment records, and private treatment records have been associated with the claims file. The Board acknowledges that the only service medical records in the claims file are the Veteran’s August 1959 pre-enlistment examination, records from his period of active duty from October 1961 to August 1962, and subsequent reports of medical history (annual physicals) dated through May 1964. Pursuant to the Board’s remand directives in March 2011 and July 2012, the RO has performed exhaustive efforts to obtain any outstanding service medical records, including a March 2011 request to the Adjutant General of Alabama, a May 2011 request to the Alabama Air National Guard, a May 2011 request to NPRC, a June 2011 second request to the Alabama Air National Guard, and a July 2012 third request to the Alabama Air National Guard (and the Board notes that the RO made requests to the Air National Guard using the address provided by the Alabama Army National Guard in its April 2011 response). The Adjutant General indicated in the response that the Air National Guard should be contacted, which was accomplished. In August 2012, the Joint Force Headquarters of the Alabama National Guard responded and indicated that all medical records are sent to the VA in St. Louis after discharge and no medical records were kept at the Alabama Air National Guard Headquarters. It is noted that the NPRC responded to the May 2011 request and indicated that the records had already been forwarded to VA. The RO sent notices to the Veteran in June 2011, September 2011, and October 2012 explaining that requests had been made for any outstanding service treatment records, including to the Air National Guard, and that no additional service treatment records were able to be obtained and requesting that he submit any such records in his possession. In addition, an October 2012 report of contact reflects that the Veteran reported that he had no service treatment records to submit in support of his claim. Therefore, the Board finds that the RO has performed exhaustive efforts to obtain any outstanding service treatment records, that any further efforts would be futile. It is noted that the April 2005 notice letter to the Veteran provided information as to sources of evidence that could be submitted to VA, including information as to treatment in service, statements from persons who knew the Veteran when he was in service and knew of any disability he had on active duty, records and statements from service medical personnel, employment physical examinations, medical evidence reflecting treatment since service, pharmacy prescription records and insurance examination reports. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b (types of evidence VA may use to supplement or as a substitute for service treatment records). With regard to the Veteran’s VA treatment records, the July 2012 and March 2013 Board remands directed that the RO associate any outstanding VA treatment records with the claims file (as there were no VA treatment records in the claims file at that time). Pursuant to the Board’s remand directives, the Veteran’s VA treatment records from the Tuscaloosa and Birmingham VA medical centers dated from June 2007 to April 2013 have been associated with the claims file (Virtual VA), and the Veteran’s claim was readjudicated by way of a July 2013 Supplemental Statement of the Case (SSOC). With regard to the Veteran’s private treatment records, the March 2011 and July 2012 Board remands directed that the Veteran be provided with an opportunity to identify any outstanding private treatment records, and to that end, to provide completed Forms 21-4142 authorizations so that any outstanding private treatment records, including from J.B., AuD, and B.M., could be obtained (the Board adds that the RO had previously requested copies of any relevant private treatment records from the Baptist Medical Center (J.B.) and from Dr. J.S. in 2005). Pursuant to the Board’s remand directives, most recently in July 2012, the RO/AMC sent a letter to the Veteran requesting that he identify any outstanding private treatment records relating to his claim, and to that end, that he complete Forms 21-4142 authorizations, particularly for records from J.B. and B.M. In August 2012, the Veteran returned blank, signed Forms 21-4142. Later in August 2012, the RO/AMC sent a letter explaining that the forms were blank. No completed Forms 21-4142, however, were ever received. VA’s duty to assist also generally includes the duty to provide a VA examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with a VA examination in June 2007. Because the VA examiner wrote that she could not offer an opinion without resorting to mere speculation, in March 2011, the Board remanded the Veteran’s claim for a new VA examination. The Veteran was provided with a new VA examination in December 2011. Because the December 2011 VA examiner opined that the Veteran’s left ear hearing loss was not related to service and reasoned in part that there was a lack of a shift in thresholds without any further rationale, in July 2012, the Board remanded the Veteran’s claim for a new VA examination. The Veteran was provided with a new VA examination in September 2012. Because, however, the September 2012 VA examiner reiterated essentially an unchanged opinion, in March 2013, the Board again remanded the Veteran’s claim for a VA medical opinion. In April 2013, a VA medical opinion was obtained that provides a more thorough rationale for the examiner’s conclusion. Therefore, the VA examiner’s opinion is sufficient upon which to base a decision with regard to the Veteran’s claim. In light of the above, the Board finds that there was substantial compliance with the Board’s remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease 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) (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). With respect to hearing loss, VA has specifically defined what is meant by a “disability” for the purpose of service connection. 38 C.F.R. § 3.385 (2012). “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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.” See id. The Veteran served in the Air Force and Air National Guard between 1959 and 1965, including periods of active service from November 1959 to February 1960, and from October 1961 to August 1962. See Official Statement of Service (Adjutant General), March 2005; DD Form 214. He claims that he has left ear hearing loss due to acoustic trauma in service, including as a result of working around aircraft hangars. See, e.g., Form 9. As an initial matter, the Board notes that the Veteran is presently service-connected for right ear hearing loss and for tinnitus, and acoustic trauma has been conceded. See Board Remand, July 2012 at 3. The Veteran’s August 1959 pre-enlistment examination report, October 1961 enlistment examination report, and April 1962 separation report of medical examination, all reflect that his whispered voice audiological testing was 15/15 feet. Also, the April 1962 separation examination report reflects that pure tone thresholds were as follows (having converted ASA to ISO): Hertz (decibels) 500 1000 2000 3000 4000 LEFT 15 15 15 10 5 Subsequent reports of medical history dated through May 1964 reflect no complaints of hearing trouble. Private treatment records in the claims file dated in 2005 and 2006 reflect that the Veteran has been diagnosed with bilateral sensorineural hearing loss. See, e.g., ENT Associates of Alabama, July 2005; Southview Medical Group, August 2006. Also, VA treatment records dated since June 2007 reflect that the Veteran has been followed for diagnosed bilateral hearing loss and for his hearing aids. See, e.g., December 7, 2012 (Tuscaloosa). None of these records, however, include any etiological opinion linking the Veteran’s left ear hearing loss to his service. The August 2006 statement from B.M., M.D., indicated that the Veteran felt that his excessive noise exposure in service may have contributed to his sensory neural hearing loss. The physician added, “[h]is hearing loss is multifactorial, and exposure to excessively loud noises can cause or exacerbate hearing loss.” The June 2007 VA examination report reflects that the examiner noted that the Veteran had significant military noise exposure for aircraft and jet engine noise without the use of hearing protection, and two years of post-service occupational noise exposure around sorter and reader machines without the use of hearing protection. The Veteran also reported hunting most of his life without using hearing protection. Audiological testing was performed, and pure tone air conduction thresholds were recorded as follows: Hertz (decibels) 500 1000 2000 3000 4000 Avg. LEFT 25 40 75 90 95 75 Speech recognition ability was measured as 76 percent in the left ear. See 38 C.F.R. § 3.385. The examiner recorded a diagnosis of bilateral sensorineural hearing loss. The June 2007 VA examiner noted that she could not provide any etiological opinion without resorting to mere speculation (because it appeared certain service treatment records were missing). Because the Veteran’s pure tone thresholds exceeded 40 decibels at 2000, 3000, and 4000 hertz (at least one), he clearly has a current left ear hearing loss disability as defined in 38 C.F.R. § 3.385. The Board will now address whether the Veteran’s left ear hearing loss is related to his service. A December 2011 VA examination report also reflects diagnosed bilateral sensorineural hearing loss. The examiner noted that the Veteran had significant noise exposure in service going in and out of hangars without hearing protection. The examiner also noted that post-service the Veteran worked in banking and denied any occupational and recreational exposure. The examiner opined that the Veteran’s left ear hearing was not affected by his service, reasoning that the Veteran’s left ear hearing was “well within” normal limits at separation, and that there was no shift in thresholds at separation. In a September 2012 VA examination report (prepared by the same examiner as in June 2007), the VA examiner reiterated the same etiological opinion as provided by the December 2011 VA examiner above. As the Board acknowledges that normal hearing at separation, in and of itself, does not preclude service connection, see Hensley, another September 2012 VA examination report was obtained. An April 2013 VA medical opinion (from the same examiner as in June 2007 and September 2012 VA) reflects that she explained that the Veteran’s left ear thresholds were well within the normal range, and with where they were measured, there is no way a measureable decrease in hearing in the left ear could have occurred, nor could a significant threshold shift occur, while in service. Therefore, the examiner opined that the Veteran’s left ear hearing loss was not caused by or the result of his military service. The Board finds the above June 2007 and September 2012 VA examination reports, as clarified by the April 2013 medical opinion (written by the same examiner) to be the most probative evidence of record with regard to the etiology of the Veteran’s left ear hearing loss based on the VA examiner’s education, training, and experience. See 38 C.F.R. § 3.159(a) (2012). The Board notes that there is no medical opinion of record that contradicts this examiner’s medical opinions. Her opinions are supported by a review of the claims file and an interview and examination of the Veteran, and are supported by a thorough rationale (as provided in the April 2013 opinion). Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s left ear hearing loss is related to his active service. The Board acknowledges that the August 2006 letter from Dr. B.M. of Southview Medical Group in which he noted the Veteran’s history of noise exposure in service and opined that his history of in-service noise exposure “may” have contributed to his hearing loss, and that excessively loud noises “can” cause or exacerbate hearing loss. The Board notes, however, that Dr. B.M.’s opinion was merely speculative and is therefore not sufficient to bring the evidence into relative equipoise. The Board also acknowledges the Veteran’s assertions to the effect that he spent a lot of time in hangars and listening to engine noise in service. As noted above, acoustic trauma in service is conceded herein. Even so, unfortunately, the Board is not able to grant service connection in this case in light of the above discussed opinions of the April 2013 VA examiner. The Veteran asserts that he has current hearing loss that is related to excessive noise exposure many years ago in service. As this is a matter that requires medical expertise, his lay statements are not competent. Moreover, even if they were found competent, credible and probative, they are outweighed by the medical opinion. Based on the VA examiner’s review of the history, audiological examination, education, training, and experience, the Board finds her opinion to be by far more probative than the Veteran’s lay opinions regarding the etiology of his left ear hearing loss. The Board adds that the Veteran has not in this case asserted continuity of symptomatology since service. In summary, the Board finds that the preponderance of the evidence is against granting service connection for left ear hearing loss, and the benefit-of-the-doubt rule is not for application; there is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans’ Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: · Appeal to the United States Court of Appeals for Veterans Claims (Court) · File with the Board a motion for reconsideration of this decision · File with the Board a motion to vacate this decision · File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: · Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA clearly explaining why you believe that the BVA committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that such letter be as specific as possible. A general statement of dissatisfaction with the BVA decision or some other aspect of the VA claims adjudication process will not suffice. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Director, Management, Planning and Analysis (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM AUG 2009 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management, Planning and Analysis, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management, Planning and Analysis, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information, as well as information about free representation through the Veterans Consortium Pro Bono Program (toll free telephone at: (888) 838-7727), is also provided on the Court's website at: http://www.uscourts.cavc.gov. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address: Office of the General Counsel (022D) 810 Vermont Avenue, NW Washington, DC 20420 The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM AUG 2009 4597 Page 2 SUPERSEDES VA FORM 4597, JUN 2008, WHICH WILL NOT BE USED