Citation Nr: 1330628	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  07-08 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

S. M. Kreitlow



INTRODUCTION

The Veteran had active military service from August 1961 to December 1965.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The rating decision was, however, issued by the RO in Atlanta, Georgia, which is the Agency of Original Jurisdiction given the Veteran's residency in Georgia.

In October 2009, the Board remanded the Veteran's appeal for additional development to include obtaining additional documentary evidence as well as a new VA examination.  In November 2011, the Board again remanded the Veteran's appeal for compliance with the prior remand and for additional documentary development.  After reviewing all the additional development completed, for the reasons discussed in more detail below, the Board finds that the prior remands have been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claims.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).   


FINDINGS OF FACT

1.  The evidence fails to establish that the Veteran's present bilateral hearing loss is related to his active military service.

2.  The evidence fails to demonstrate that the Veteran currently has tinnitus.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).

2.  Tinnitus was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance Requirements

VA's duties to notify and assist claimants in substantiating a claim for VA benefits  are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In the present case, notice was provided to the Veteran in August 2006, prior to the initial AOJ decision on his claims.  The Board finds that the notice provided fully complies with VA's duty to notify.  Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims.  He was told it was his responsibility to support the claims with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist.  Indeed, the Veteran identified potential evidence in connection with his claims, which indicates he knew of the need to provide VA with information and evidence to support his claims.  Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless.   

With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA.  38 U.S.C.A. § 5103A(b)(1).  All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained.  The Veteran's service treatment records and service personnel records are associated with the claims file.  The Veteran also identified treatment while in service at Lakehurst Naval Air Station in New Jersey and Brooklyn Navy Yard in New York.  Efforts were made to obtain any records from these naval bases using both social security numbers used for the Veteran; however, the RO was advised that no records were located.  Formal Findings of Unavailability of these records were issued in April 2010 and December 2012, and the Veteran was notified of these findings.  He has indicated that he has no records from these places.  The Veteran also identified evidence with the Selective Service that he claimed would support his claims.  In December 2012, Selective Service records were received from the National Personnel Records Center.  The Veteran did not identify any treatment records.  VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  The Veteran was afforded VA examination on his claims in December 2006.  The Board notes that, in its October 2009 remand, it found that this VA examiner's medical opinion was inadequate to the extent that the examiner failed to address the Veteran's statements regarding continuity of hearing problems and tinnitus since service.  In February 2013, however, the Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified in Walker v. Shinseki, 708 F.3d 1331 (2013), the provisions of 38 C.F.R. § 3.303 and how to establish service connection under each subsection.  Specifically it held that establishing service connection based upon continuity of symptomatology under subsection (b) was only available for chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Neither hearing loss nor tinnitus is an enumerated disease listed therein.  Consequently, the Board finds that the VA examiner's medical opinion is not inadequate to the extent that the examiner failed to consider the Veteran's report of a continuity of symptoms since service.  Nevertheless, the Board notes that VA made many attempts to provide the Veteran with another VA examination; however, the Veteran has been uncooperative and, thus, no subsequent VA examination has been obtained.  In response to the October 2009 Board remand, the Appeals Management Center (AMC) sent a VA audiology examination request to the Dublin VA Medical Center in November 2010; however, a second request was made in December 2010 for the Augusta VA Medical Center.  This examination request states:  "Do not cancel due to jurisdiction we were told Augusta does audio exams for Dublin."  In January 2011, the AMC was notified that the examination had been cancelled because the Veteran had failed to appear.  In a statement dated in July 2011 submitted in response to a Supplemental Statement of the Case, the Veteran stated that he did not go for the examination because "the lady in charge told me there was no reason to go; they did not have my medical records at that time."  Consequently, in the November 2011 remand, the Board instructed that the Veteran should be provided with another opportunity to appear for VA examination.

In November 2011, the AMC sent a request for examination to the Dublin VA Medical Center.  In December, the AMC was advised that Dublin VA Medical Center did not have the capability of processing audiology examinations at that time as it did not have the staff in place to perform such examinations.  Thus a new request was sent to the Augusta VA Medical Center.  A Report of General Information dated December 22, 2010, indicates that the Veteran called the VA Medical Center and advised that he is legally blind and is unable to make the trip to Augusta and requested that it be rescheduled for Dublin.  By letter in January 2012, the Veteran was advised that a request for examination was made to the Atlanta VA Medical Center.  It appears that, pursuant to that request, two attempts were made to schedule the Veteran for VA examination in Atlanta; however, he cancelled both examinations due to illness first affecting the person who was to give him a ride and second a family member.  Thus, these appointments were cancelled.  In May 2012, the AMC again requested the Veteran be scheduled for VA audiology examination at the Atlanta VA Medical Center.  A May 10, 2012 email shows the Veteran refused his examination at this location, stating the following:  "Veteran relayed he wishes to complete this exam at Dublin as it is approximately 40 minutes away from his home vs. Atlanta VAMC which is approximately 2 hours away according to veteran."  

Subsequently, the Veteran was notified by letter in June 2012 that a VA examination for the Veteran had been requested to be scheduled at the Augusta VA Medical Center.  He was advised that the Dublin VA Medical Center does not have the capability to provide the examination required.  He was further advised that there is a free DAV shuttle service that provides transportation from the Dublin VA Medical Center to the Augusta VA Medical Center every Tuesday and Thursday at 7am and how to contact DAV to schedule his reservation.  By email dated June 14, 2012, the AMC was advised that the Veteran had again cancelled his examination scheduled for June 6th.  A Report of General Information dated December 28, 2012, reviewed the efforts made to schedule the Veteran for a VA examination as requested by the Board and the fact that the Veteran had cancelled each request.  It also indicates that the Veteran was contacted by telephone and informed that the Dublin VA Medical Center still did not have the resources to perform audiology examinations, and he was again given the opportunity to have his examination scheduled at the VA Medical Center in either Augusta or Atlanta.  The Veteran responded to call him when the Dublin VA Medical Center is able to perform audiology examinations.  The AMC found that VA has fulfilled its duty to assist the Veteran and the Board agrees.  

In the present case, the Veteran has been advised of the reasons why his VA examination cannot be scheduled at the Dublin VA Medical Center and has been advised of an alternative means of transportation to the Augusta VA Medical Center from the Dublin VA Medical Center since transportation to Augusta or Atlanta appears to be an issue for him.  Nevertheless, the Veteran has refused to appear for VA examination at any VA Medical Center except Dublin.  Given the unavailability of services at the Dublin VA Medical Center and the Veteran's refusal to cooperative by going to another VA Medical Center where an examination can be performed despite provided with transportation alternatives, the Board finds that VA has met its duty to assist the Veteran by providing him with sufficient opportunity to appear for VA examination.  The duty to assist is a two-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  VA is not obligated to hold open the Veteran's claims indefinitely in circumstances where the closest medical facility is not available for examination, especially when reasonable accommodation can be made and the Veteran refuses it, such is the case here.  Consequently, the Board finds that it may proceed to adjudicate the Veteran's claims without prejudice to him.

Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case.  Additional efforts to assist or notify him would serve no useful purpose.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. 

II.  Analysis

The Veteran is seeking service connection for hearing loss and tinnitus.  He claims his left ear drum was ruptured from the concussion of weapons firing while on the rifle range at Lakehurst, New Jersey in the summer of 1965.  He has stated that he was a firing range coach and had to stand next to service members firing weapons all day long and that the extended exposure to these noises resulted in his current hearing loss.  He reports that he attempted to reenlist in the Marine Corps (in either 1966 or 1967) but was denied due to his hearing loss.  Finally, he has stated that, although he has not been treated for this condition since his discharge, his hearing has continued to deteriorate over the years.  Furthermore, in support of his claim, the Veteran has contended that Selective Service changed his classification from "1A" to "1YA,"  which he contends indicates a service related injury.  The Veteran admits that he has never sought treatment for hearing loss or tinnitus despite being advised to do so.

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).  Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record."  Walker at 1334.

A second way to establish direct service connection is set forth in § 3.303(b).  In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases.  "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease.  By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought.  In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id. at 1335-36.

In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Id. at 1336.  Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted.  Id. at 1336-39. 

Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a).  

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  Medical evidence of a current disability and nexus is not always required to establish service connection.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.   38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

Initially, the Board notes that neither hearing loss nor tinnitus is an enumerated chronic disease listed in 38 C.F.R. § 3.309(a).  Consequently, consideration of service connection based upon either chronicity in service or a continuity of symptomatology after service pursuant to 38 C.F.R. § 3.303(b) is not warranted.  Furthermore, presumptive service connection for a chronic disease pursuant to 38 C.F.R. § 3.307(a) is not warranted.

Consequently, service connection must be established pursuant to 38 C.F.R. § 3.303(a) based upon the totality of the evidence.  

Hearing Loss

A veteran is not required to show that hearing loss was present during active military service in order to establish service connection.  See Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  Rather, he may establish the required nexus between his current hearing disability and his term of military service by showing that his current hearing disability resulted from personal injury suffered in the line of duty.  Id.  Claims for service connection must be considered on the basis of the places, types and circumstances of a veteran's military service.  38 C.F.R. § 3.303(a).  

With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection:  "[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."  38 C.F.R. § 3.385.  

After considering all the evidence of record, the Board finds that it fails to demonstrate that the Veteran's current bilateral hearing loss is related to noise exposure in service or is related to his claimed ruptured left ear drum in service.  

The service treatment records are silent for any complaints of or treatment for a ruptured left ear drum or hearing loss.  Entrance examination report dated in August 1961 shows audiometer testing demonstrated puretone thresholds in the right ear at 15, 15, 10, 10 and 10 at 500, 1000, 2000, 4000 and 8000 hertz, respectively; and puretone thresholds in the left ear at 10, 10, 10, 5 and 5 at 500, 1000, 2000, 4000 and 8000 hertz, respectively.  Separation examination report from December 1965 shows audiometer testing demonstrated puretone thresholds in the right ear at 0, 0, 0, 0, 0, and 15 at 500, 1000, 2000, 3000, 4000, and 6000 hertz, respectively; and puretone thresholds in the left ear at 0, 0, 0, 0, 5 and 0 at 500, 1000, 2000, 3000, 4000 and 6000 hertz, respectively.  Moreover, the examiner who conducted the separation examination failed to note any abnormality of the Veteran's ears to include a perforation of the left ear drum.  

Based on these records, it is clear that the Veteran's hearing acuity did not undergo a worsening during service.  The Board acknowledges that the Veteran has stated that his hearing was not tested at the time of his discharge.  The Board also acknowledges that the service treatment records contain a report entitled "Group Screening Audiogram" dated in August 1961 that appears to give the same puretone thresholds as those reported on the separation examination report.  Nevertheless, the Board notes that the Veteran has not provided any supporting evidence to support his contention that he did not have an audiogram at his separation examination or to show that this August 1961 "Group Screening Audiogram" report was used by the examiner at that time.  The Board is limited to the evidence before it and, thus, accepts that the evidence does not show that there was hearing loss or a loss of hearing acuity at the time the Veteran separated from service.  

The Veteran underwent VA examination in support of his claim in December 2006.  The examiner noted that review of the claims file was not requested by the RO but that the referral Form 2507 stated that the Veteran's hearing was normal at separation.  The Veteran complained of bilateral, progressive hearing loss, greater on the left, that reportedly began on the rifle range in 1965 when fluid spontaneously ran from his left ear.  He gave a history of serving as a rifle range coach for three years with unprotected daily exposure for two months each summer and once per month unprotected exposure to anti-tank recoilless rifle fire over a period of 18 months, but no exposure to combat noise.  He also gave a 33-year history of civilian employment as an iron worker with earplugs reportedly worn when indicated.  He denied a history of recreational noise exposure, ear pathology, or familial deafness.

On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
50
90
90
LEFT
20
25
40
60
80

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 76 percent in the left ear.  The examiner stated that the audiometric results obtained were not considered to be reliable for rating purposes because the threshold for speech for the right ear was significantly better than any of the corresponding puretone averages and the Veteran was able to respond consistently to questions posed at levels below the level of the best puretone average.  Moreover, the speech recognition scores for the left ear were much poorer than the degree and configuration of the loss in that ear would predict.  

The diagnosis was that the Veteran currently manifests a sloping, high-frequency, sensorineural hearing loss bilaterally.  The examiner opined that, because the Veteran's hearing was normal at separation, because no scientific evidence exists in support of delayed onset of noise-induced hearing loss, because of a long and strong history of civilian occupation noise exposure, and because of the Veteran's advanced age, his current hearing loss is most likely caused by or a result of occupational noise exposure and presbycusis.  

The Board notes that there is no further medical evidence of record.  Consequently, the available medical evidence is against finding that the Veteran's current bilateral hearing loss is related to his military service because the evidence fails to show the onset of hearing loss in service or that a medical nexus exists between the current hearing loss and his service.  The Board acknowledges that it had previously found the December 2006 VA examiner's medical opinion inadequate in its October 2009 remand; however, as explained above, the reason for that inadequacy is no longer applicable since the Federal Circuit Court's decision in Walker.  Unfortunately, however, there remain issues with the adequacy of the examination (for example, the fact that the examiner did not review the claims file) which affect the probativeness of the medical opinion provided basically because the examination could not be provided at the closest VA Medical Center.  As previously discussed, however, the Veteran basically refused to report for multiple examinations that were requested in order to obtain a more adequate VA examination and medical opinion.  The Veteran's failure to cooperate leaves the Board with having to rely on the only competent evidence of record, which is the December 2006 VA examination report.  The Veteran's own statements relating his hearing loss to either noise exposure in service or to the claimed left ear drum rupture are not competent because, given the lack of contemporaneous evidence showing hearing loss in or shortly after service, a nexus medical opinion is needed to establish that the Veteran's current hearing loss is related to his military service.  As a lay person, however, the Veteran is not competent to render such an opinion.  See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.).  

In addition, rather than submit any medical evidence to support his claim, the Veteran has relied on his own statements and his military records.  As stated above, however, the Veteran's service treatment records do not support his claim as they fail to demonstrate a loss of hearing acuity in service or that he incurred a perforated left ear drum in service.  Moreover, the Board notes that the Veteran filed a claim for service connection for "ruptured eardrums" in March 1979, only a few years after his discharge from service.  His claim was denied in a May 1979 rating decision because the service treatment records were negative for complaint, treatment or findings referable to ruptured eardrums.  The fact that the Veteran sought service connection for ruptured ear drums in 1979 but not hearing loss is evidence against his current claim for service connection for hearing loss.  His silence at that time as to having hearing loss related to the ruptured ear drum is inconsistent with his current statements that his hearing loss started in service at the time the ruptured ear drum was incurred.  Thus his prior silence in 1979 as to having hearing loss related to service tends to speak against the fact that he had hearing loss at that time despite his current statements, especially since the 1979 claim was much more contemporaneous to service than any statement the Veteran has made in support of his current claim for service connection for hearing loss.

Furthermore, although the Veteran has claimed that he tried to reenlist in the Marine Corps in either late 1966 or in 1967 and was denied because of hearing loss, there is no evidence of this.  The Veteran's official service treatment records do not contain any enlistment examination during such a period of time.  Furthermore, the Veteran's service personnel records do not contain any enlistment application or any other notation of the Veteran applying to reenlist.  Rather the service personnel records show he was released to the Reserves in December 1965to finish out his six year initial enlistment obligation, that he served the first year but was put on inactive status the second year, and was discharge in August 1967 once his enlistment obligation was complete.  

In addition, in an attempt to establish that he had a service related disability, the Veteran claimed that his Selective Service classification was changed from "1A" to "1YA."  He contends that the "1YA" classification indicates a service related disability.  VA obtained the Veteran's Selective Service records from after his discharge from active duty.  The records show the Veteran registered with Selective Services on December 20, 1965, just three days after his discharge from active service.  Although the registration card lists obvious physical characteristics that would aid in identification, it did not list any disabilities the Veteran may have had at that time.  More importantly, a log of registrants showing the Veteran listed therein indicates that his classification as of May 18, 1966 was "4a" and as of August 5, 1970 was "5a."  According to the Selective Service System classification chart provided, for the period from 1948 through 1976, "4-A" indicated a "Registrant who has completed service; or sole surviving son," and "5-A" indicated "Registrant over the age of liability for military service."  Classification "1-A" indicated that the registrant was available for military service.  Classification "1-Y," however, indicated that the registrant was "qualified for service only in time of war or national emergency."  The Board notes that this list of Selective Service classifications also contains "4-F" which was used to indicate a registrant who was not qualified for military service.  The list also contains classification "1-D" which could have been applied to the Veteran as it relates to a member of a Reserve component, to which the Veteran was released to when he was discharged from active duty.  

Nevertheless, the Selective Service records fail to corroborate the Veteran's claim that he was originally classified as "1A" and was changed to "1YA."  Moreover, the Selective Service records obtained fail to demonstrate that there was any classification code that would indicate a registrant had a service related disability as claimed by the Veteran.  If the Veteran was found not qualified to enter military service in 1966 or 1967 due to a hearing disability, one would expect his classification to have been changed to "4-F" to indicate he was not qualified for military service.  Rather the classifications shown by the Selective Service records clearly demonstrate the Veteran was classified as "4a" in 1966 (merely indicating his prior active service) with no change until August 1970 when he was classified as "5a" because of his age.  Consequently, the Board finds that the Selective Service records fail to support the Veteran's claim that he was given a classification indicating he had a service related disability.  

Given the inconsistencies set forth above, the Board finds that the probative and persuasive evidence is the contemporaneous evidence such as the service treatment records, service personnel records, the Selective Service records and the records relating to the 1979 claim for service connection for ruptured ear drums.  After considering all the evidence, the Board does not find the Veteran's testimony to be credible.  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself.  The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  This would include weighing the contemporary medical evidence against lay statements.  See also, Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).  

In conclusion, although the Veteran is competent to relate what happened in service, he mainly relates that he had a ruptured left ear drum and has related his hearing loss to that incident, although he has also related having noise exposure to rifle fire while being a training instructor during two months a summer for several years while he was in service.  Unfortunately, the evidence does not support his contentions.  Although service records support that the Veteran was a rifle instructor (at least in 1965), they do not support any injury to the Veteran's ear drums or that any noise he was exposed to caused hearing loss or a decrease in his hearing acuity during service.  Furthermore, the competent and credible medical evidence of record is against the Veteran's claim.  The Board finds, therefore, that the preponderance of the evidence is against finding that the Veteran's current bilateral hearing loss is related to any injury, disease or event incurred during his active military service.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Service connection is, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Tinnitus

The Veteran has claimed service connection for tinnitus.  Except for listing it on his claim and indicating the onset to have been July 15, 1965, however, the Veteran has not provided any statements regarding currently having tinnitus or that its onset was in service and it has continued since service.  Rather his statements are focused solely on his hearing loss.  

At the VA audiology examination conducted in December 2006, the examiner noted that the Veteran did not claim tinnitus, but rather reported a popping sensation in his left ear that he had consulted a physician about.  Given the examiner's notation in the report and lack of a diagnosis of tinnitus, the Board can only conclude that he did not find the Veteran's report of a "popping sensation" to be consistent with tinnitus.  Furthermore, the Board notes that tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking.  YT v Brown, 9 Vet. App. 195, 196 (1996).  Popping is, therefore, not consistent with tinnitus.

Consequently, based upon the evidence of record (or lack thereof), the Board finds that the preponderance of the evidence is against finding that the Veteran currently has tinnitus.  Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Therefore, service connection for tinnitus is denied because the medical evidence fails to establish the Veteran has a current disability for which service connection may be granted.  



ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to service connection for tinnitus is denied.






____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs