Citation Nr: 1333264 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-19 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to July 1954. Among his medals and decorations are the Korean Service Medal and the Combat Medic Badge. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). 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). FINDINGS OF FACT 1. Right ear hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a right ear sensorineural hearing loss was not exhibited within the first post service year. 2. Resolving all doubt in the Veteran's favor, left ear hearing loss had its clinical onset in service. 3. Resolving all doubt in the Veteran's favor, tinnitus had its clinical onset in service. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in or aggravated by service and right ear sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. Left ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in November 2011 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Hearing Loss and Tinnitus Sensorineural hearing loss is entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The first diagnosis of hearing loss in the record is an August 2011 private treatment record that notes moderate to severe sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left ear. This is approximately 57 years after service. The record does not contain any earlier records of treatment for hearing loss. Therefore, there is no indication that the Veteran's sensorineural hearing loss manifested to a degree of ten percent or more within one year after discharge, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Although the Veteran is not entitled to service connection on a presumptive basis, he is not precluded from establishing service connection for bilateral hearing loss with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Direct service connection requires competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313, 581 F.3d 1313 (Fed. Cir. 2009). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304. Again, the August 2011 private treatment record shows moderate to severe sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left ear, as well as, chronic left ear tinnitus. The December 2011 VA examination confirms bilateral hearing loss and tinnitus. Thus the current disability requirement is met with regard to both claimed disabilities. The Veteran's service treatment records do not show complaints of or treatment for hearing loss during service. His separation examination did not include a hearing test as the examiner noted that such testing was not indicated. The Veteran reported military noise exposure due to exposure to artillery fire, including tank fire, while serving as a medical aid in Korea. The Board concedes such noise exposure as consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). The third requirement for direct service connection is a nexus between the in-service disease or injury and the Veteran's current disability The private treatment record dated August 2011 does not address the etiology of the Veteran's tinnitus. The December 2011 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or the result of his military noise exposure, noting that the Veteran reported a 5 to 10 year history of tinnitus, which placed the onset of these symptoms at 45 years after his separation from service. With regard to the issue of bilateral hearing loss, the private treatment record dated August 2011 contains a positive medical nexus opinion, which states, "in my best medical opinion [the Veteran's moderate to severe sensorineural hearing loss] is more likely than not related to noise exposure while serving in the military." This opinion was not accompanied by rationale. The December 2011 VA examiner, after a review of the claims file and examination of the Veteran, opined that the Veteran's hearing loss was less likely than not caused by or the result of his military noise exposure. This examiner explained that this opinion was based on the Veteran's reported history of first noticing hearing loss 25 or 30 years prior, which was 25 years after his separation from service. The Board finds this opinion, which specifically addresses the onset of the Veteran's symptoms, to be more probative. To the extent that the Veteran himself believes that his bilateral hearing loss and tinnitus are due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, given the reported onset of his symptoms, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Alternately, service connection for bilateral hearing loss may be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). In this regard, the Board notes that the record notes a 25 to 30 year history of hearing loss, which suggests an initial onset of 25 years after his separation from service. The Veteran has not submitted any medical or lay evidence suggesting that his hearing loss symptoms date back to his military service. Thus, the weight of the evidence is against a finding of continuity of symptomatology. After a review of the overall record, the Board finds credible the Veteran's claim of tinnitus and significant acoustic trauma on the left side following a tank firing its gun in the proximity of the Veteran. The private medical report noted that tinnitus was specifically in the left ear, which is the symptom he reported following the incident in service. Also, his left ear hearing loss is more severe than the right ear hearing loss. Resolving all doubt in the Veteran's favor, the Board finds that tinnitus and left ear hearing loss are related to the incident the Veteran credibly describes occurred to him during his combat service in Korea. However, since right ear hearing loss was not present or even claimed to have been present in service or for many years later, it is less likely to be related to service. In short, the claim of service connection for right ear hearing loss must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is allowed. Service connection for tinnitus is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs