Citation Nr: 0705911 Decision Date: 03/01/07 Archive Date: 03/13/07 DOCKET NO. 05-21 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss, on appeal from an initial grant of service connection. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran served on active duty from December 1942 to September 1945, and from September 1945 to January 1947. This matter comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in St. Louis, Missouri. That decision denied entitlement to service connection for bilateral hearing loss and tinnitus. The veteran appealed that decision. Subsequently, service connection was granted for bilateral hearing loss but not for tinnitus. Thus, that issue remains on appeal. In March 2006, the Board responded to a Congressional inquiry on the veteran's appeal. A copy of the response was sent to the veteran. The veteran, in turn, responded to the Board's letter. More specifically, in the response, the veteran insinuated that he was applying for benefits for his dependent daughter. A review of the claims folder indicates that further action has not occurred on this matter. As such, the matter is returned to the RO for additional development. The issue of entitlement to an evaluation in excess of 20 percent for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The VA has fulfilled its notice and duty to assist to the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issue addressed in this decision. 2. Two VA medical examination reports failed to etiologically link the veteran's tinnitus with the veteran' military service and any incident therein. CONCLUSION OF LAW Tinnitus was not incurred or aggravated during the veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). VA satisfied its duty to notify by means of a notification letter sent to him in August 2003, and again in December 2003 and January 2004, by the agency of original jurisdiction (AOJ). These letters were issued prior to the initial AOJ decision. These letters informed the appellant of what evidence was required to substantiate the claim, and of his, and VA's, respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. VA has informed the appellant of which evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf. In this regard, the VA sent the appellant notice of the VCAA, which spelled out the requirements of the VCAA and what the VA would do to assist the appellant. The VA informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. The appellant was told that he should inform the VA of any additional records or evidence necessary for his claim. The Board fulfilled its duty to assist. In this instance, the VA obtained the veteran's available medical treatment records, including requesting any treatment records from the various facilities the veteran has been treated, and those other records that the VA was made aware thereof. As such, the VA obtained those records and they have been included in the claims folder, available for review. Given the foregoing, the Board finds that the RO has substantially complied with the duty to procure the necessary medical and personnel records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2005). The record reflects that the veteran underwent ear-specific examinations shortly after he petitioned for service connection. The results of those examinations were recorded and those records have been included in the claims folder for review. Moreover, the appellant was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. The appellant was given notice that the VA would help him obtain evidence but that it was up to the appellant to inform the VA of that evidence. During the course of this appeal, the appellant and his various representatives have proffered documents and statements in support of the appellant's claim. It seems clear that the VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability(ies) on appeal. Despite the inadequate notice provided to the veteran on these latter two elements, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. To explain it a different way, notice as to the assignment of an effective date is not required because the claim for service connection is being denied at this time and no effective date is being set. Hence, the veteran is not prejudiced by the lack of this element of notice. In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Here, the appellant is not prejudiced by the Board's consideration of his claim as VA has already met all notice and duty to assist obligations to the appellant under the VCAA. In essence, the appellant in this case has been notified as to the laws and regulations governing service connection claims. He has been advised of the evidence considered in connection with his appeal and what information VA and the appellant would provide. He has been told what the VA would do to assist him with his claim and the VA has obtained all documents it has notice thereof that would assist in the adjudication of the appellant's claim. Thus, the Board finds that there has been no prejudice to the appellant that would warrant further notification or development. As such, the appellant's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard, 4 Vet. App. at 393. Under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(b) (2006), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v Gober, 10 Vet. App. 488, 495-98 (1997). To grant service connection, it is required that the evidence shows the existence of a current disability, an in-service disease or injury, and a link between the disability and the in-service disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has stated that ". . . a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2006). When aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995). The veteran's service medical records are unavailable. The National Personnel Records Center (NPRC) has reported that the veteran's medical records were not on file and were possibly destroyed in a fire at that facility. In cases where the veteran's service medical records are unavailable (or as in this case, probably destroyed) through no fault of the claimant there is a "heightened duty" to assist the veteran in the development of the case. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2005). See generally McCormick v. Gober, 14 Vet. App. 39 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The heightened duty to assist includes the obligation to search for alternate methods of proving service connection. VA regulations do not require that service connection be established by service medical records, but may be established by cognizable evidence from other medical and lay sources. Smith v. Derwinski, 2 Vet. App. 147, 148 (1992). The Court has further held that the "duty to assist" the appellant includes advising him that, even though service records were not available, alternate proof to support the claim will be considered. Lanyo v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the VA's Adjudication Procedure Manual provides that alternate sources of evidence may be utilized in a claim where there are missing records. Such sources include statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals and clinics, evidence from private physicians who may have treated, especially soon after separation, and letters written during service. VA Adjudication Procedure Manual, Manual M21-1, Part III, Paragraph 4.25(c) (July 12, 1995). In 2003, the veteran submitted a claim for benefits. He claimed that as a result of his service during and after World War II, he developed bilateral hearing loss and tinnitus. To support his claim, the veteran submitted written statements but he did not provide medical documents or opinions that would corroborate his assertions with respect to tinnitus. As a result of his claim, the veteran underwent VA audiological examinations in February 2004 and May 2005. The examiners reviewed the veteran's available records prior to the examinations. Nevertheless, after the exams, both examiners concluded that the veteran's tinnitus was not related to his military service. It was noted that the veteran admitted that he had not experienced tinnitus until ten years prior to the submission of his claim. Because of the NPRC fire, the veteran's service medical records are unavailable for review. Therefore, it is not possible to ascertain whether the veteran complained of tinnitus while he was still on active duty. Additionally, while the VA has requested that the veteran provide medical documentation showing complaints involving tinnitus following the veteran's discharge from the service, said documents had not been forthcoming from the veteran. The Board recognizes that it has a duty to assist the veteran in obtaining additional information that may benefit or support his claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The claims folder indicates that, on numerous occasions, the VA has attempted to obtain additional information from the veteran concerning his tinnitus. However, evidence that would support the veteran's assertions has not been received by the VA. To the Board, it appears that the veteran has remained passively disinterested in providing assistance and has not provided information that is essential in obtaining evidence that might substantiate his claim. See Gobber v. Derwinski, 2 Vet. App. 470 (1992); Olson v. Principi, 3 Vet. App. 480 (1992). As noted, the most recent, and only, medical opinions contained in the claims folder have not suggested that there is any relationship between the current tinnitus condition and the veteran's military service and his exposure to noise during that service. The Board acknowledges the statements by the veteran relating his condition to service. Undoubtedly, these statements made by the veteran, and repeated by the veteran's accredited representative, were made in good faith; however, the veteran is not a doctor nor has he undergone medical training. The Board notes that the veteran is competent to report that on which he has personal knowledge, i.e., what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the veteran is a lay person, and as a layperson, he does not have the expertise to opine regarding medical diagnosis or etiology. He cannot state, with medical certainty, that he does have tinnitus that was the result of or related to his military service. In the absence of evidence demonstrating that the veteran has the requisite training to proffer medical opinions, the contentions made by him are no more than unsubstantiated conjecture and are of no probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2005); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While it is true that the veteran now suffers from tinnitus, credible medical evidence etiologically linking this condition with the veteran's military service or to a possible injury that the veteran suffered therefrom while in service has not been presented. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.102 (2006). The veteran's claim is thus denied. ORDER Entitlement to service connection for tinnitus is denied. REMAND It was noted above that when the veteran started his original appeal, there were two issues. One of those issues involved tinnitus, which has been discussed above. The other issue was entitlement to service connection for bilateral hearing loss. In a rating action, dated June 10, 2005, the RO concluded that service connection was warranted and it assigned a 20 percent disability evaluation. The veteran was notified of that rating action. Subsequently, the veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, which was received in July 2005. In that document, the veteran specifically objected to the rating that had been assigned for his bilateral hearing loss. The Board finds the veteran has submitted a notice of disagreement with respect to the rating assigned for this disorder. Liberally construing the doctrine promulgated by Manlincon v. West, 12 Vet. App. 238 (1999), the Board finds that the issue must be REMANDED so that the RO can issue a determination on the matter. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO must review the entire record and ensure for the issue that may be on appeal, that of whether an evaluation in excess of 20 percent may be assigned for bilateral hearing loss, that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2005) and 38 C.F.R. § 3.159 (2006), as well as VAOPGCPREC 7-2004, is fully satisfied. In particular, the RO must inform the claimant: (1) of the notification and duty to assist provisions of the VCAA and its implementing regulations, (2) about the information and evidence not of record that is necessary to substantiate his increased rating claim; (3) about the information and evidence that VA will seek to provide; (4) about the information and evidence the claimant is expected to provide; and (5) request or tell him to provide any evidence in his possession that pertains to his claim. Additionally, the RO must specifically issue a letter to the veteran that provides in detail what the veteran must do in order to prevail on his claim. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issue on appeal. 2. The RO should issue a decision and a statement of the case as to the issue of entitlement to an evaluation in excess of 20 percent for bilateral hearing loss, on appeal from an initial grant of service connection. The veteran should be apprised of his right to submit a substantive appeal and to have his claim reviewed by the Board. The RO should allow the veteran and his accredited representative the requisite period of time for a response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs