Citation Nr: 1333218 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-36 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Mitchell, Kimberly A. INTRODUCTION The Veteran served on active duty from July 1971 to January 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that denied the claims currently on appeal. In response to the Veteran's request for a hearing before the Board, the RO schedule him for a hearing on August 28, 2013. However, the Veteran did not appear for the scheduled hearing, nor did he provide any reason for his failure to attend or request that the hearing be rescheduled. None of the notice letters regarding the hearing have been returned as undeliverable. Accordingly, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss disability did not have onset during active service, was not caused by active service, and did not manifest within one year of separation from active service. 2. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in April 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent May 2010 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination and medical opinion. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, service incurrence and relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013). Tinnitus and sensorineural hearing loss are considered chronic diseases under 38 C.F.R. § 3.303(b) (2013); 38 C.F.R. § 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2013). Moreover, service connection will also be presumed for chronic disabilities, such as sensorineural hearing loss or tinnitus, if manifest to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran contends that he has bilateral hearing loss and tinnitus as a result of in-service noise exposure. Specifically, he claims that he was exposed to loud noises as a firefighter and working on the flight lines in the United States Air Force. The Board acknowledges that the Veteran is competent to report a history of in-service acoustic trauma. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, his account is corroborated by his service personnel records, which show that he served in a military occupational specialty (fireman) that is traditionally associated with noise exposure. Thus, resolving reasonable doubt in the Veteran's favor, the Board accepts his lay assertions as evidence that the claimed noise exposure did occur during service, and concludes that he was exposed to acoustic trauma while on active duty. The Veteran's service medical records are silent for complaints or any diagnosis of hearing loss or tinnitus in service. An October 1974 separation examination includes audiometric findings with no mention of hearing loss and puretone thresholds of 20 or less at all frequencies tested. In August 2009, the Veteran was provided a VA audiological examination. Audiological testing revealed evidence of a hearing loss disability. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz. were 25, 30, 20, 40, and 35 decibels. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 30, 25, 45, and 45 decibels. Speech recognition scores using the Maryland CNC Test were 100 percent for each ear. Those results are evidence that the Veteran has a current bilateral hearing loss disability as defined by VA regulation. 38 C.F.R. § 3.385 (2013). The Veteran also reported tinnitus that was constant but could not determine the onset of the tinnitus. The Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The Veteran provided additional information during the course of the examination related to his hearing. He stated that he had been in law enforcement and corrections for 26 years. In the course of that employment, he participated in weapons training with rifles, pistols, and shotguns with hearing protection. Additionally, the Veteran reported some recreational shooting, with hearing protection, and motor boating. The Veteran reported hearing loss for the previous three to five years and could not determine the onset of his tinnitus. The examiner opined that because the Veteran reported recent onset of hearing loss, many years after separation, and could not determine the onset of tinnitus, it was less likely than not (less than 50 percent probability) that the Veteran's hearing loss and tinnitus were caused by or a result of military noise exposure. The examiner stated the Veteran's hearing loss and tinnitus were more likely due to other etiologies such as aging, high blood pressure, and recreational noise exposure. The evidence of record shows current bilateral hearing disability and tinnitus. However, in order to establish service connection, the evidence still needs to show a nexus linking those disabilities to an in-service event, disease, or injury. The Board finds that the evidence of record is against a finding that hearing loss or tinnitus had onset during service or have been present since service. The examiner provided a rationale that the Veteran's hearing loss and tinnitus disabilities were likely a result of age, high blood pressure, and occupational and recreational noise exposure. In the Veteran's August 2010 statement, he stated that he was not an avid hunter or recreational shooter and had only participated in those activities two to three times over the years. As for the boating activity, the Veteran stated that the engine was encased within the body of the boat so the engine noise was minimal. Notwithstanding the Veteran's reports about post service noise exposure, the examiner's opinion included review of the Veteran's reported history and the claims file, concluding that there was a less than 50 percent probability that the Veteran's hearing loss and tinnitus were caused by or related to military noise exposure. The Board finds that opinion more persuasive because of the training of the examiner. To the extent that the Veteran believes that his hearing loss and tinnitus are related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses, such as difficulty hearing or sounds in his ears. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not shown to have the training or expertise to provide a medical opinion as to the etiology of hearing loss or tinnitus. VA provided the Veteran with an examination based in part on the competency of those observations. That examination found it was less likely that hearing loss or tinnitus was related to the Veteran's service and the Board finds that examination to be the most persuasive evidence of record. In summary, the Board finds that the preponderance of evidence is against a finding that the Veteran's hearing loss or tinnitus had onset during service, and against a finding that sensorineural hearing loss or tinnitus manifested within one year of separation from active service. Therefore, the claims are denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs