Citation Nr: 0719862 Decision Date: 07/02/07 Archive Date: 07/13/07 DOCKET NO. 05-05 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from December 1965 to February 1968. He served in the Republic of Vietnam from August 12, 1966 to August 6, 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, wherein the RO denied service connection for bilateral hearing loss and tinnitus. The veteran timely appealed the April 2004 rating action to the Board. Also on appeal at the time of the RO's April 2004 rating action, was the issue of entitlement to service connection for tinnitus. By a May 2005 rating action, the RO granted service connection for tinnitus and assigned an initial 10 percent evaluation, effective January 16, 2004. As the veteran has not disagreed with either the 10 percent evaluation or the effective date, this issue is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156 (Fed. Cir. 1997). FINDING OF FACT The veteran's bilateral hearing loss is related to acoustic trauma during active service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must inform the claimant of any information and evidence (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 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. Pellegrini v. Principi, 18 Vet. App. 112 (2004). The Court has also held that 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 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 for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The RO provided the veteran with notice on the first three Pelegrini II VCAA elements in a February 2004. The RO provided notice as to the fourth Pelegrini II element, and the VCAA elements outlined in Dingess by way of a March 2006 letter. The March 2006 letter was provided after the initial denial, but the timing deficiency was cured when the claim was readjudicated via an April 2007, supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO has obtained all reported pertinent records, and obtained an examination with an opinion on the claim. The RO thereby complied with VA's duty under the VCAA to assist the veteran with the development of his claim. 38 U.S.C.A. § 5103A. II. Service Connection Criteria Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, No. 04-0534 (U.S. Vet. App., Jun. 15, 2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Service connection may be presumed, for certain chronic diseases, such as sensorineural hearing loss (as a disease of the central nervous system), which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. 3.307, 3.309 (2006). Where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b) (West 1991). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA "shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record exists of such incurrence exists. In such a case a factual presumption arises that that the alleged injury or disease is service connected. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304 (1996). Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. III. Analysis The results of an April 2004 VA audiology examination report show bilateral sensorineural hearing loss that meets the criteria of 38 C.F.R. § 3.385. The requirement of a current disability is thereby satisfied. The veteran has been awarded service connection for PTSD on the basis of combat stressor. As a combat veteran, his reports of in-service noise exposure are entitled to the presumptions of 38 U.S.C.A. § 1154(b). He has reported exposure to noise from gun fire, helicopter, and from mortar and artillery fire. His reports of combat related noise exposure are consistent with the circumstances of his service as a door gunner on helicopters. The requirement of an in- service injury is therefore, met. The remaining requirement is for evidence linking the current disability to the in-service noise exposure. The veteran has opined that hearing loss is related to service, but he is a lay person and is not competent to express an opinion as to medical causation. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The only competent opinion was provided by the audiologist who conducted the May 2005 examination. At the examination the veteran reported the history of in-service noise exposure, that he had worked in a steel mill for 37 years but regularly wore hearing protection, and been a deer hunter many years ago. The audiologist noted the veteran's reports of in-service noise exposure, but also noted that hearing loss was not found at the time of the veteran's examination for separation from service and that he had a long history of occupational noise exposure with hearing protection. The audiologist concluded that it was "not at least as likely as not" that the current hearing loss was caused by the in- service noise exposure. The only competent opinion is against a link between current hearing loss and service. There is also no evidence of a continuity of symptomatology. Treatment records first report hearing loss in 2004. On VA psychiatric examination in March 2003, the examiner recorded the veteran's medical disabilities, but did not report hearing loss. The veteran has also never reported a continuity of symptomatology. Service connection could not, therefore, be granted under the alternate method provided in 38 C.F.R. § 3.303(b). Barr v. Nicholson. Absent competent evidence of a link between the current disability and service, the weight of the evidence is against the claim. Reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs