Citation Nr: 1334834 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-16 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Kimberly A.Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1995 to September 1995, February 2003 to October 2003, and from May 2005 to July 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that denied the claims currently on appeal. FINDINGS OF FACT 1. The Veteran has not had a bilateral hearing loss disability at any time. 2. The Veteran has not had a tinnitus disability at any time. 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, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 June 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 upon the party attacking the agency determination); 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 2011 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. In August 2010, VA provided the Veteran an audiology examination in which the examiner provided a relevant expert opinion and sufficiently explained the basis for the conclusion reached. Therefore, the Board finds that examination and opinion to be adequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007). 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). Disability due to sensorineural hearing loss is considered chronic. 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 as is contemplated under 38 C.F.R. § 3.303(a) (2013). Moreover, service connection will also be presumed for chronic disabilities such as sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309 (2013). The Veteran contends he has bilateral hearing loss and tinnitus as a result of his in-service noise exposure. Specifically, he claims that he was exposed to loud noises as a small arms artillery repairman in the United States Army. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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 (2013). The Veteran's service treatment records are negative for bilateral hearing loss and tinnitus. In May 2010, the Veteran was afforded a VA audiology examination. Puretone thresholds in the right ear were 10, 10, 15, 10, and 15 decibels and puretone thresholds in the left ear were 5, 15, 15, 10, and 5 decibels at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition scores using the Maryland CNC Test were 98 percent for the right ear and 94 percent for the left ear. The examiner stated the pure tone test results indicated hearing sensitivity within normal limits bilaterally, and word recognition scores were excellent bilaterally. The examiner stated that the Veteran's thresholds and word recognition scores did not meet the eligibility criteria for disability under VA regulations. The examiner opined that in the absence of the condition, the Veteran's claimed hearing loss was not caused by or a result of military noise exposure. The audiogram conducted showed no puretone threshold test results greater than 15 decibels at any relevant frequency, and speech recognition scores were 94 percent or greater. Therefore, there is no evidence of a hearing loss disability as defined by VA regulation. 38 C.F.R. § 3.385 (2013). During the May 2010 VA examination, the Veteran reported intermittent tinnitus that alternated between ears. He reported it occurred once every other month and lasted about 10 seconds each time. At the examination, the Veteran did not report onset of his tinnitus. The examiner stated that the Veteran's reported tinnitus would be considered to be normally occurring tinnitus as it was mild, infrequent, and of short duration. The examiner opined it was a less than 50 percent probability that the Veteran's tinnitus was caused by or a result of noise exposure during service. In certain unique instances, lay testimony may be competent to establish medical diagnosis or etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report that he has noise in his ears. However, based on the frequency and duration of the Veteran's reported tinnitus, the examiner opined that the Veteran's tinnitus was not related to service, but instead was considered normally occurring tinnitus. The Veteran is not competent to provide an opinion as to the diagnosis or etiology of tinnitus and is not competent to provide an opinion as to whether the noise in his ears is naturally occurring tinnitus or is related to service. The examiner provided a competent and persuasive opinion and there is not contrary competent opinion of record. The Veteran's June 2011 substantive appeal reported a worsening of his tinnitus symptoms since the May 2010 VA examination. However, a conclusory statement that his tinnitus was worse is not sufficient. The Veteran has not provided any specific evidence of worsening. For example, stating that his symptoms have increased from once every other month for 10 seconds to more frequent episodes of longer duration. The examiner's rationale in finding that tinnitus was not related to noise exposure was brief. However it was adequate. The examiner noted the mild, infrequent, and short duration of the Veteran's symptoms. That supports the conclusion the Veteran has normally occurring tinnitus and not a disability. The examiner provided an opinion based upon the available evidence a the time of the examination and the Veteran has not provided evidence that outweighs the opinion or that triggers the need for an additional examination or opinion. The basis of the previous opinion remains plausible and persuasive. In summary, the preponderance of evidence is against a finding that the Veteran has a hearing loss or tinnitus disability. Therefore, the appeal must be denied. As the preponderance of the evidence is against the claims of entitlement to service connection for bilateral hearing loss and tinnitus, the claims must be 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