Citation Nr: 1336068 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-19 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Spinnicchia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The issue of entitlement to service connection for ataxia has been raised by the record in the Veteran's April 2010 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability as defined by VA regulations. 2. The Veteran has a current tinnitus disability. 3. The Veteran experienced acoustic trauma during active duty service. 4. The Veteran's current tinnitus disability had its onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA is required to notify the claimant and his representative of any information, and any 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 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd sub. nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice must be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Since the Board's decision below constitutes a full grant of the Veteran's claim for tinnitus, the Board finds no reason to further discuss VCAA matters pertaining to this issue since any error in notice or assistance would be harmless. Therefore, the remaining discussion of the VCAA will only pertain to the Veteran's hearing loss claim. In this case, the Veteran was advised of VA's duties to notify and assist in the development of his service connection claim. An April 2010 letter provided him with notice of the evidence necessary to substantiate his claim for service connection. This letter also explained the evidence VA was responsible for providing and the evidence the Veteran was responsible for providing, as well as informing the Veteran of the disability rating and effective date criteria. This notice was provided to the Veteran prior to the initial adjudication of his claim in August 2010. Regarding VA's duty to assist, all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The Veteran and his representative have not identified any outstanding relevant evidence. While the Veteran's claims file suggests that the Veteran may be in receipt of Social Security disability benefits, for the reasons explained below, the Board finds it is not necessary for VA to obtain these records to fairly adjudicate the Veteran's hearing loss claim. VA afforded the Veteran an examination with respect to his hearing loss claim in July 2010. This examination included all necessary testing, an audiometric examination of the Veteran, and a review of the claims file. The examiner provided a thorough opinion with an accompanying rationale on the question of whether the Veteran had a current hearing loss disability. Thus, the Board finds that the examination report is adequate to assess the Veteran's direct service connection theory of entitlement. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, VA's duties to notify and assist have been met and appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Merits of the Claims A. Service Connection Claim for Bilateral Hearing Loss The Veteran comes before the Board seeking service connection for bilateral hearing loss. In order to establish entitlement to service connection, an appellant must show the following three elements: "(1) the existence of a present disability; (2) [an] 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, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)). As explained below, because the Veteran does not have a current hearing loss disability as defined by VA regulations, this claim must be denied. Under 38 C.F.R. § 3.385, there are three potential ways that a Veteran can meet the criteria for a hearing loss disability for VA purposes: (1) if the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 40 decibels or greater; (2) if the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or (3) if the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The July 2010 VA examination reflects that the Veteran's current hearing loss disorder meets none of these criteria; therefore, he does not have a current hearing loss disability as defined by VA regulations. The July 2010 VA examination revealed auditory thresholds in decibels as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 20 20 20 25 Left Ear 15 20 15 30 35 Speech recognition scores were 94 percent for his right ear and 100 percent for his left ear As none of the thresholds at any of the frequencies are 40 decibels or greater for either ear and only two frequencies in the left ear have thresholds greater than 26, and speech recognition scores were 94 to 100, the Veteran's current hearing loss does not meet the criteria to be a hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. The Board acknowledges the Veteran's contentions that he has a current hearing loss disability, but audiological testing shows that the Veteran's hearing loss disorder does not meet the criteria for a hearing loss disability as defined by VA regulations. Moreover, the Veteran's June 2009 and February 2010 private treatment records from Dr. TS indicate that the Veteran was found to have grossly intact hearing. In summary, the Veteran does not have a current hearing loss disability as defined by VA regulations. In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The claims file contains evidence indicating that the Veteran may be receiving Social Security Administration disability benefits. The Board finds that such records would not be relevant to adjudication of the Veteran's hearing loss claim, however, since current audiological testing reveals that the Veteran's hearing loss does not meet the regulatory criteria for a hearing loss disability. Accordingly, any error in not obtaining the Veteran's Social Security Administration records is harmless. B. Service Connection Claim for Tinnitus The Veteran also claims that he is entitled to service connection for tinnitus. He claims that the onset of his tinnitus occurred while in service. 38 C.F.R. § 3.303(b) states that when a chronic disease is shown in service or within a presumptive period after service, subsequent manifestations of the same chronic disease at any later date will be considered service connected, unless the disease is clearly attributable to intercurrent causes. "Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic . . . ." 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339 (2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). The Board notes that tinnitus is not considered a chronic disease under § 3.309(a). The Veteran claims that he began experiencing tinnitus after incurring acoustic trauma in service. During his VA exam, he informed the examiner that he believed his tinnitus began around 1969 or 1970, while the Veteran was in service. The Veteran's service records corroborate the Veteran's in-service noise exposure by noting that he worked as an aircraft technician as well as on the flight line where he was exposed to jet engine noise. In Layno v. Brown, the United States Court of Veterans Appeals (Court) acknowledged that a person is competent to testify to that which he can hear, feel, see, smell, or taste. 6 Vet. App. 465, 469 (1994) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976)). Thus, the Veteran is competent to testify that he has experienced tinnitus, which is a form of ringing in the ears, since service. See Charles v. Principi, 16 Vet. App 370 (2002) (tinnitus can be observed by the lay person). The Board has no reason to doubt the Veteran's contentions regarding his tinnitus. Accordingly, the Board finds the Veteran's contentions regarding experiencing tinnitus in service to be both competent and credible. The Board acknowledges that the July 2010 VA examiner concluded that the Veteran's tinnitus was less likely than not related to his military service. The only rationale for her opinion is that there were no complaints of tinnitus in the claims file and the Veteran could not report how often or how long his tinnitus occurred. As noted above, the Board finds the Veteran competent and credible to state that his tinnitus symptoms began in service. Moreover, the Board cannot reject the Veteran's statements regarding tinnitus simply because they are not corroborated by the Veteran's service treatment records, which is what the VA examiner did in providing the etiology opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.) Accordingly, the Board finds that the July 2010 VA examiner's opinion has no probative value. As noted above, tinnitus is not among the chronic disabilities listed in 38 C.F.R. § 3.309(a) , and may not be established based on continuity of symptomatology; however, the claim may be established if it is found that the disability had its onset in or is related to service or an event of service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After resolving all reasonable doubt in the Veteran's favor, the Board finds that tinnitus had its onset in service. It follows that entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs