Citation Nr: 1337771 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-01 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, denied service connection for hearing loss and tinnitus. The Veteran's October 2010 notice of disagreement also initiated an appeal with respect to the denial of a claim for entitlement to service connection for a back disability. The November 2012 statement of the case (SOC) included the issue, but the Veteran's January 2013 substantive appeal was specifically limited to the claims concerning entitlement to service connection for bilateral hearing loss and tinnitus. Thus, the Veteran did not file a substantive appeal perfecting the claim for entitlement to service connection for a back disability. The appeal has not been certified to the Board and the Veteran has not indicated that he wishes to pursue this claim. The Board finds that VA has not explicitly or implicitly waived the requirement for a substantive appeal. See Percy v. Shinseki, 23 Vet.App. 37 (2009). Therefore, the claim for service connection for a back disability is not currently before the Board. The Veteran's January 2013 substantive appeal also included a request for a hearing before the Board at a local VA office. The hearing request was later withdrawn in March 2013 by the Veteran's representative in accordance with 38 C.F.R. § 20.704(e) (2013). The Board will therefore proceed with a decision in this case. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability. 2. The Veteran's left ear hearing loss is etiologically related to active duty service. 2. Bilateral tinnitus is etiologically related to service-connected left ear hearing loss. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). 2. Service connection for left ear hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 3. Service connection for bilateral tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as it was incurred due to noise exposure associated with his active duty service as a pilot. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board finds that a current hearing loss disability is demonstrated by the evidence of record with respect to the Veteran's left ear. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2013). The Veteran demonstrated a hearing loss disability of the left ear for VA purposes upon VA contract examination in June 2010 and private examination in March 2013. He was also diagnosed with bilateral tinnitus by the VA and private audiologists. Thus, the record establishes the presence of left ear hearing loss and bilateral tinnitus. With respect to the claim for the right ear, the competent medical evidence establishes that the Veteran does not manifest right ear hearing loss. His right ear hearing tested normal for VA purposes at the June 2010 VA contract examination and March 2013 private examination. The Veteran is competent to report symptoms such as decreased hearing in the right ear, but he is not competent to diagnose hearing loss for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board finds that the objective medical evidence outweighs the Veteran's lay statements regarding the presence of a right ear hearing loss disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Veteran not competent to diagnose cancer; whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board). Therefore, service connection is not possible for a hearing loss disability of the right ear as a current disability is not demonstrated. The Board also finds that an in-service injury is established. Although service treatment records are negative for findings or complaints related to the Veteran's hearing (to include normal audiograms performed throughout the Veteran's active duty service), the Veteran has consistently reported that he experienced acoustic trauma during his active duty service as a pilot. Service records verify the Veteran's service as a pilot and the Veteran's reports of in-service noise exposure are credible. The Board therefore finds that the evidence establishes an in-service injury. Additionally, the absence of evidence of in-service hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran submitted a medical opinion in support of his claim for service connection. In March 2013, a private audiologist opined that the Veteran's current hearing loss was the result of excessive noise exposure during active duty service based on the type and location of the loss and the Veteran's reports of the onset of the disability during service. Although this opinion was not rendered following review of the claims file, the private audiologist was informed of the Veteran's history of noise exposure during service and addressed the characteristics of the Veteran's hearing loss. The record contains some evidence against the claim; specifically, the opinion of a VA contract audiologist who examined the Veteran and reviewed the claims file in June 2010. Thus, there is one medical opinion in support of the claim and one weighing against it. The Board finds that the evidence is at least in equipoise regarding service connection for left ear hearing loss and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the claim for tinnitus, both the June 2010 VA and March 2013 private examiners concluded that the Veteran's tinnitus was associated with hearing loss. Therefore, service connection is warranted for tinnitus as secondary to service-connected left ear hearing loss. See 38 C.F.R. § 3.310. All the elements necessary for establishing service connection are met and the Veteran's claims for service connection for left ear hearing loss and tinnitus are granted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the Veteran's left ear hearing loss and tinnitus, the Board finds that VA has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claims. Regarding the claim for right ear hearing loss, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in June 2010 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the June 2010 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and a March 2013 private Disability Benefits Questionnaire (DBQ). The Veteran has not indicated that there is any other evidence that is relevant to the claim for right ear hearing loss. Additionally, the Veteran was provided a proper VA contract examination in June 2010 response to his claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs