Citation Nr: 0731041 Decision Date: 10/02/07 Archive Date: 10/16/07 DOCKET NO. 05-33 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased (compensable) evaluation for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty for training from April 1978 to October 1978, and was a member of the Army National Guard from March 1978 to January 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In January 2006, the Board remanded this case for the veteran to be scheduled for a Travel Board hearing; however, he canceled his request for this hearing. FINDINGS OF FACT 1. Tinnitus is not attributable to service. 2. The veteran currently has Level I hearing in his service- connected right ear and Level I hearing in his nonservice- connected left ear. CONCLUSIONS OF LAW 1. Tinnitus was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. The criteria for a compensable evaluation for right ear hearing loss disability are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in October 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). In this case, the claimant was allowed a meaningful opportunity to participate in the adjudication of the claim and the essential fairness of the adjudication process was not affected. The claimant was provided VCAA notification and had knowledge in that regard. As further noted below, VA has obtained all relevant evidence. The claimant's service medical records and post-service medical treatment records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in June 2004. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. There is no objective evidence indicating that there has been a material change in the service-connected right ear hearing loss since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The June 2004 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Since the Board has concluded that the preponderance of the evidence is against the claim of service connection and an increased rating any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The U.S. Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[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 an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court), which has stated, "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 determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The service medical records reveal no complaints, findings, treatment, or diagnosis of tinnitus. The veteran was noted to have hearing loss during service and was given an H-2 profile, however, tinnitus was never reported nor diagnosed. Following service, there are no complaints, findings, treatment, or diagnosis of tinnitus until the veteran filed his current claim in April 2004. When the veteran was afforded a VA examination in conjunction with the claim in June 2004, tinnitus was noted. In sum, the service medical records are negative. The post- service records are negative for decades. The veteran was diagnosed as having tinnitus in 2004. There is no medical evidence establishing an etiological connection between current diagnosis and service. The veteran asserts that there is a relationship between service and currently diagnosed tinnitus. He maintains that he has tinnitus due to noise exposure from grenade fire and weapons fire during service. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the Federal Circuit Court has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet App 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. 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")). See Barr. The veteran is competent to state that he has had ringing in his ears and that he was exposed to grenade and other weapons firing during service. The veteran is competent to state that there was continuity of symptoms over the years. However, the Board must assess if the veteran's statements are credible. See Barr. The veteran's service medical records, as noted, were negative. The veteran complained during service of hearing difficulties. Thus, he made reports of hearing problems during service, but he never reported having any symptoms of tinnitus. The silence and the normal findings constitute negative evidence. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Further, the Board notes that contemporaneous evidence has greater probative value than history as currently reported by the veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). There were no inservice notations of tinnitus. The passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In this case, decades have passed between the veteran's separation from service and his current reports of tinnitus and his current diagnosis of tinnitus. In sum, the competent evidence does not establish that tinnitus began in service. Although the veteran asserts that there was continuity of symptomatology following service, but his assertions are not credible. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that more than 25 years after such separation, the veteran currently has tinnitus. Despite the veteran's contentions that he had tinnitus problems since service, the record is devoid of supporting evidence. In essence, the veteran's assertions of chronicity and continuity are unsupported. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (normal medical findings at the time of separation from service, as well as absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against a claim.). Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. Increased Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. In evaluating service connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo- Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC). The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is indicated where the row and column intersect. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Copies of the pertinent tables were provided to the veteran in the statement of the case. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). According to the application regulations, if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation, from Table VII, the nonservice- connected ear will be assigned a Roman numeral designation of I, subject to the provisions of 38 U.S.C.A. § 3.383; 38 C.F.R. § 4.85(f) (2005). In this regard, compensation is payable for the combination of service-connected and nonservice-connected disabilities as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the appellant's own willful misconduct. 38 C.F.R. § 3.383(a). If hearing impairment in one ear is compensable to a degree of 10 percent or more as a result of service-connected disability, and there is hearing impairment in the other ear as a result of nonservice- connected disability that meets the provisions of 38 C.F.R. § 3.385, compensation is payable as if both disabilities were service-connected. 38 C.F.R. § 3.383(a)(3)). Essentially, if the service-connected ear is 10 percent or more disabling, the deafness of the nonservice-connected ear (whether total or partial) is considered in assigning the proper rating. In this case, the service-connected right ear is not 10 percent or more disabling, and thus, the nonservice-connected left ear is assigned a Roman numeral designation of Level I. The veteran maintains that he has difficulty hearing as well as understanding speech. He states that he is deaf in his right ear. The veteran is competent to report that he cannot hear well in his right ear. However, he is not competent to provide an opinion regarding his exact audiological findings at various Hertz levels or of his speech recognition scores as these matters require medical expertise which he does not possess. VA outpatient records show that in April 2004, the veteran was able to hear and understand the examiner at normal conversation levels. On the authorized audiological evaluation in June 2004, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 55 70 65 LEFT 20 55 70 65 There were negative and positive Stengers throughout the hearing test as the veteran was never consistent on the Stengers. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The puretone threshold average in the right ear was 53.75. The puretone threshold average in the left ear was 52.50. The examiner stated that the veteran had high frequency sensorineural hearing loss which was worse in the right ear. Under the rating criteria, the June 2004 examination results constitute Level I hearing on the right. The veteran's left ear would be designated as a Roman numeral I in accordance with the Code of Federal Regulations. See 38 C.F.R. § 4.85(f) ("If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of § 3.383 of this chapter"). Utilizing these designations under Diagnostic Code 6100, the percentage evaluation assigned for the veteran's hearing impairment would remain at zero or noncompensable. Further, the Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in the service-connected right ear is not 55 decibels or more. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, on any of the examinations. The Board acknowledges the veteran's contentions regarding his difficulty hearing, however, the audiology examination yielded results warranting a noncompensable rating throughout the appeal period. This objective evidence is more persuasive with regard to the level of disability under the Rating Schedule as it specifically pertains to the rating criteria. The Board is bound in its decision by application of the rating schedule to the reported test results. The preponderance of the evidence is against the claim for a compensable evaluation for the veteran's right ear hearing loss disability. Thus, the benefit sought on appeal must be denied. ORDER Service connection for tinnitus is denied. An increased (compensable) rating for right ear hearing loss is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs