Citation Nr: 0715852 Decision Date: 05/29/07 Archive Date: 06/11/07 DOCKET NO. 04-11 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Wagman, Associate Counsel INTRODUCTION The veteran had active military service from April 1962 to July 1965. This case comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2003 rating decision by the Cleveland, Ohio Regional Office ("RO") of the Department of Veterans Affairs ("VA") that denied the veteran's claim for service connection for bilateral hearing loss. FINDING OF FACT Bilateral hearing loss was not incurred in or aggravated as a result of the veteran's military service, nor may it be presumed to have been so incurred or aggravated. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159. The VA has a duty to notify the veteran and his representative, if any, of the information and evidence needed to substantiate a claim. The notification should (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence the VA will seek to provide; (3) inform the veteran about the information and evidence he was expected to provide and (4) request the veteran provide any evidence in his possession which pertains to the claim. This notification was satisfied by way of a letter from the RO to the veteran dated in March 2003. The March 2003 letter advised the veteran that evidence showing a current bilateral hearing loss that is linked to an in-service injury or condition was necessary to substantiate the claim. The letter also described entitlement to service connection for certain "presumptive conditions" that are first shown after service. The letter provided the veteran with examples of evidence necessary to support his claim including dates and places of medical treatment. Medical authorizations were provided so VA could assist in obtaining private medical records. The letter advised the veteran of the evidence in the claims file, of VA's duty to obtain relevant federal records and that VA would make reasonable efforts to obtain private records. The elements of a claim for service connection were also provided in the March 2003 letter. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), it was held that VA must also provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Although VA did not provide such notice in this case, because service connection is being denied, proceeding with this matter in its procedural posture would not inure to the veteran's prejudice. Second, the VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service medical records ("SMRs") are associated with the claims file. The RO has requested and obtained all available medical records from the Ann Arbor, Michigan and Cleveland, Ohio VA Medical Centers ("VAMC"). Additionally, the veteran has been afforded a VA examination in connection with the claim in July 2003. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Merits of the Claim The veteran seeks service connection for bilateral hearing loss. The preponderance of the evidence is against the claim and the appeal will be denied. Service connection may be granted if the evidence shows that a disability was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (2002). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). To establish service connection, there must be: (1) A medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection means that the facts establish that a particular injury or disease resulting in a disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (2002); 38 C.F.R. § 3.303(a) (2005). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. Service connection may also be established by a showing of chronicity of a disorder or continuity of symptoms. Under 38 C.F.R. § 3.303(b), a veteran may utilize "the chronic disease shown as such in service" provision when the evidence demonstrates: (1) that the veteran had a chronic disease in service, or during an applicable presumptive period; and (2) that the veteran presently has the same condition. With respect to the first element there are two questions: (a) is medical evidence needed to demonstrate the existence in service or in the presumption period of such a chronic disease, or will lay evidence suffice; and, (b) must such evidence be contemporaneous with the time period to which it refers, or can post-service or post-presumption period evidence address existence in service. Savage v. Gober, 10 Vet. App. 488 (1997). It has been observed that the answer to inquiry (a) depends on whether the disability is of a type that requires medical expertise to demonstrate its existence, or whether the disability is of the type as to which lay observation is competent to identify its existence. Savage, supra; see also Harvey v. Brown, 6 Vet. App. 390-393 (1994) (medical causation evidence may not be necessary for conditions that lend themselves to lay observation such as flat feet); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Horwitz v. Brown, 5 Vet. App. 217-221-22 (1993); Budnick v. Derwinski, 3 Vet. App. 185, 186-87 (1992). With respect to question (b), it has been observed that either evidence contemporaneous with service or the presumption period or evidence that is post-service or post- presumption-period may suffice. It has been noted that the language of the regulation (i.e., "first shown as a clear- cut clinical entity, at some later date") appears to contemplate the use of post-service or post-presumption- period disease. Further, to the extent that the language of the regulation is ambiguous, "interpretive doubt is to be construed in the veteran's favor." Savage, supra, citing Brown v. Gardner, 513 U.S. 115, 117-18 (1994). It has been held that with respect to element 2, again the question becomes whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumption period or whether lay evidence will suffice. Again, the answer depends on the nature of the veteran's present condition, i.e., whether it is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation. Savage, supra. As addressed below, the dispositive issue on appeal concerns whether the veteran's claimed condition was first manifested in service and/or alternatively related to one or more in service events. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. The veteran reports an extensive history of unprotected noise exposure in the military and to a greater extent while working in a factory as a civilian. He states that he wore hearing protection for ten years in the factory but did not wear hearing protection for 20 years prior to that time. Service medical records do not reveal any complaints or diagnoses of hearing loss and testing was within normal limits. The veteran's separation examination is negative for hearing deficiencies or complaint. The first evidence of hearing loss of record is a February 2003 Ann Arbor VAMC clinic note that indicates the veteran underwent routine audiometric testing. The testing revealed moderate to severe hearing loss. The audiologist opined that the veteran's hearing loss was as likely as not related to service; however, there is no indication that the audiologist reviewed the veteran's complete record, including the veteran's service medical records. Moreover, the audiologist failed to provide any rationale for the opinion given. To the contrary, the VA examiner reviewed the veteran's entire claims file in July 2003 and concluded that the veteran's hearing loss was not likely due to any active military service. He based his conclusion on the veteran's military separation examination which conclusively showed the veteran had normal hearing in both ears when he left the service in June 1965. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (Observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); Mariano v. Principi, 17 Vet. App. 305, 317 (2003) (Observing that flawed methodology in creating medical report renders physician's opinion of "questionable probative value."); Sklar v. Brown, 5 Vet. App. 140, 146 (1993)(Observing that a specialist's opinion as to a medical matter outside of his or her specialty to be given little weight). An opinion as to medical etiology must be based on competent medical evidence. "Competent medical evidence" means, in part, evidence that is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). The record is devoid of any such medical opinion providing a nexus between the veteran's current hearing loss and his service. The Board finds, by a preponderance of the evidence, that the veteran's bilateral hearing loss, which first manifested many years after service, is not related to event(s) in service. The July 2003 VA examination is of greater probative value than the previously dated treatment note, because the former was based upon a review of all of the evidence of record and was generated with a specific view towards ascertaining whether the disorder was related to service. In reaching this decision, the Board has considered the "benefit-of-the- doubt doctrine;" however, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs