Citation Nr: 1342984 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-36 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for 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 Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from July 1949 to March 1953. This matter has come before the Board of Veterans' Appeals (Board) on appeal from April 2007 and October 2007 rating decisions of the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Board remanded this case, in relevant part, for issuance of a statement of the case on the issues of service connection for hearing loss and tinnitus. In July 2011, the Board denied service connection for a low back disability and remanded the remaining issues for further development. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDINGS OF FACT 1. The Veteran's hearing loss is not related to his military service. 2. The Veteran's tinnitus is not related to his military service. CONCLUSIONS OF LAW 1. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (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. 2013); 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). Additionally, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran was sent a letter in March 2007 that provided information as to what evidence was required to substantiate the claims, the division of responsibilities between VA and the Veteran in developing an appeal, and 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. VA also 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. The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper 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 reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed 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 claims. In compliance with the Board's May 2010 remand, VA issued a statement of the case in April 2011. The Veteran then perfected his appeal by submitting a VA Form 9 on the issue of service connection for hearing loss and tinnitus. In compliance with the Board's July 2011 remand, VA associated additional recent VA treatment records with the claims folder and provided the Veteran with a medical examination in December 2011. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the May 2010 and July 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 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 claims. 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). Analysis As a chronic condition, sensorineural hearing loss (organic disease of the nervous system) 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 came in November 2005, more than 50 years after service. The record does not contain any earlier records of treatment or evaluation for hearing loss. In his original claim, the Veteran stated that the onset of these conditions was unknown. Therefore, there is no indication that the Veteran's hearing loss was 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 hearing loss with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). To prevail on a claim of direct service connection, there must be 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 (Fed. Cir. 2009). 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 500, 1000, 2000, 3000, or 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. During the pendency of this appeal, the Veteran has been shown to have sufficient bilateral hearing loss to establish impaired hearing for VA purposes. See generally, VA treatment records, December 2011 VA examination. Likewise, the Veteran has been diagnosed with tinnitus. See December 2011 VA examination. Thus, the current disability requirement is met with regard to both claimed conditions. Neither hearing loss nor tinnitus was noted in service. The Veteran was given a whispered voice test during his March 1953 separation examination and was found to have normal hearing. No ear abnormality was noted. The Veteran's DD-214 shows that he was a personnel clerk. Instead, the Veteran claims service connection for hearing loss and tinnitus due to in-service noise exposure while working aboard a destroyer in the Navy and being "constantly subjected to the continuous noise of the boilers and engines." See May 2011 VA Form 9; see also January 2007 claim, September 2007 statement. The Veteran is competent to provide lay evidence of noise exposure. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board has no reason to question the Veteran's credibility in this regard. Thus, the Board accepts the Veteran's account of in-service noise exposure due to working near boilers and engines. With regard to the third and final requirement for direct service connection of a nexus between the in-service noise exposure and the Veteran's current hearing loss and/or tinnitus, VA scheduled the Veteran for a December 2011 audiology examination. This examiner opined that the Veteran's hearing loss was less likely as not related to his military service. In reaching this opinion, the examiner noted that the Veteran had a military occupational specialty (MOS) with a low probability of acoustic trauma and described his duties as mainly typing aboard the ship. He did not attribute his hearing loss to any specific event or incident of acoustic trauma during service and did not notice any hearing loss during service. Moreover, the Veteran did not seek treatment for hearing loss until more than 50 years after his separation from service. The Veteran's representative has argued that this opinion is inadequate because it does not provide an opinion on the specific cause of the Veteran's hearing loss. The Board rejects this argument. The question asked of the examiner was whether it is at least as likely as not that the Veteran's hearing loss was attributable to the Veteran's military service, including his reported noise exposure. The opinion answers that question directly. Absent a service connected cause, the actual etiology of the Veteran's hearing loss is irrelevant for VA purposes. Thus, this opinion is adequate. The record does not contain a positive medical nexus opinion and the Veteran has not submitted one. Likewise, the December 2011 audiology examiner found that the Veteran's tinnitus was at least as likely as not associated with his non-service connected bilateral hearing loss and less likely as not caused by or the result of the Veteran's military noise exposure. In the accompanying rationale, this examiner noted that the Veteran reported an approximately 20-year history of tinnitus and had been separated from service for 50 years. Again, the record does not contain evidence of a nexus between the in-service noise exposure. The Board has also considered the Veteran's lay assertions that his hearing loss and tinnitus are related to his noise exposure during military service. In this regard, a lay person, such as the Veteran may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, given the extensive passage of time, 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. The record does not contain evidence of a nexus between the in-service noise exposure and the Veteran's post-service hearing loss or tinnitus. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Thus, service connection is not warranted for either condition and the claims are denied. ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs