Citation Nr: 0713654 Decision Date: 05/09/07 Archive Date: 05/17/07 DOCKET NO. 05-01 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from June 1942 until October 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2003 Rating Decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. Service medical records contain no reference to any hearing loss or ear injuries. 2. The currently diagnosed hearing loss, which was first diagnosed many years following service, is not causally or etiologically related to active service. CONCLUSION OF LAW The veteran's bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103A, 5107 (West 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in June 2003 and January 2005. While this notice does not provide any information concerning the evaluation or the effective date that could be assigned should service connection be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since this decision affirms the RO's denial of service connection, the veteran is not prejudiced by the failure to provide him that further information. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have not made the RO or the Board aware of any supporting information not in the record of evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. Merits of the Claim The veteran claims he has hearing loss due to his exposure to the noises associated with a combat zone, as well as loud noises he was exposed to as a military baker. He also argues that in his duties as a military baker, he was exposed to acoustic trauma from artillery and small arms fire. Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as sensorineural hearing loss, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That an injury was incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony is some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Specifically, although the veteran is shown to having bilateral hearing loss, there is no competent evidence linking the disorder to any incident of his military service. The evidence indicates that the veteran has hearing loss, as indicated in a June 2003 audiogram. Therefore, the remaining question is if the evidence of record supports a finding that the veteran's disability was incurred coincident with service, and if a nexus exists between the current disability and the inservice disease or injury. None of the veteran's service medical records note that the veteran was treated for or had complained of problems with his hearing while in service. Subsequent to the veteran's discharge, the record of evidence does not indicate that the veteran made any hearing loss complaints to VA doctors or other physicians until this May 2003 claim. All of the veteran's private medical records in evidence similarly do not note any complaints of hearing loss. The only mentions of the veteran's hearing in the medical records provided by the veteran's private physician's office are two observations by medical personnel that the veteran appeared "hard of hearing," one in December 2001 and one from September 2003. The only evidence provided by the veteran as to his hearing loss is a hearing aid provider's June 2003 audiogram that indicates the veteran's hearing threshold decreases at higher frequencies. Furthermore, no statement as to the cause of the veteran's hearing loss is made by any kind of medical provider. Based on the record, no continuity of symptomatology for hearing loss is recorded for over fifty years after the veteran's discharge, and no competent medical evidence tends to show the required nexus between the veteran's current disability and an injury incurred or aggravated during service. By "competent medical evidence" is meant in part that which 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 only evidence provided as to the veteran's claim is his belief that his hearing loss is due to the noise he was subjected to in service. Although the veteran can provide testimony as to his own experiences and observations, the factual question of if the veteran's hearing loss can be attributed to his in-service experiences and injuries is a medical question, requiring a medical expert. The Board does not dispute the veteran's belief that his hearing loss is connected to his time in service; however, the veteran's opinion cannot be used as the competent medical evidence necessary to support his claim. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). 38 C.F.R. § 3.159. The veteran does not have the requisite special medical knowledge necessary for such opinion evidence. The evidentiary gap between the veteran's service discharge and his first record of hearing loss many decades later, when considered in conjunction with the veteran's lack of acoustic trauma tends to disprove the veteran's claim that his hearing loss was due to an inservice disease or injury and should thus be considered service connected. 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 evidence can be used to prove or disprove a disputed issue). As noted above, the Board presently denies the claim on the principal basis that the there is no evidence of continuity of symptoms and no competent medical evidence of a nexus between the disorder and military service. However, there is also no evidence that the veteran was exposed to noise trauma in service, either as a baker or through artillery or small arms fire, and the in-service event prong of a successful claim of service connection is therefore also not met. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). The veteran is the recipient of the Good Conduct Medal and the Asiatic Pacific Theater Ribbon with a Bronze Battle Star. However, these decorations do not denote combat service, and the veteran's service records do not suggest otherwise. Notwithstanding these factors, however, as noted there is no evidence of a linkage between the veteran's symptoms and any incident of military service. Clyburn v. West, 12 Vet. App. 296 (1999) ((In claim of service connection by combat veteran, the Board's failure to discuss the provisions of 38 U.S.C.A § 1154(b) held to be non-prejudicial error, because, assuming the veteran had in-service experience as described, no medical nexus evidence had been obtained linking the current knee disorder to any incident of military service)); Boyer v. West, 11 Vet. App. 477 (1998); Wade v. West, 11 Vet. App. 202 (1998) ((Both holding that 38 U.S.C.A § 1154(b) does not relieve the veteran of submitting competent medical evidence suggesting a nexus between the currently disorder and the claimed combat service)); Huston v. Principi, 18 Vet. App. 395 at 402 (2004) (Same proposition applied in context of clear and unmistakable error analysis). In this circumstance, there is no duty on the part of VA to provide a medical examination, because as in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the appellant has been advised of the need to submit competent medical evidence indicating that he has the disorders in question, and further substantiating evidence suggestive of a linkage between his active service and the current disorders, if shown. The appellant has not done so, and no evidence thus supportive has otherwise been obtained. Here, as in Wells, the record in its whole, after due notification, advisement, and assistance to the appellant under the VCAA, does not contain competent evidence to suggest that the disorders are related to the appellant's military service. Given these matters of record, there is no competent evidence that "the disability or symptoms may be associated with the claimant's active military . . . service." 38 U.S.C.A § 5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002) (Holding that under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence, [including statements of the claimant]," and where, the claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge. Because there was evidence of record satisfying two of the requirements of the statute, i.e., competent evidence of a current disability and evidence indicating an association between the appellant's disability and his active service, but there was not of record, as relied upon in part by the Board in denying his claim, competent medical evidence addressing whether there is a nexus between his tinnitus and his active service, VA was to provide the claimant with a medical "nexus" examination). When the weight of evidence supports a claim or an approximate balance between positive and negative evidence regarding a material issue, the veteran shall prevail or have the benefit of the doubt on that issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). 38 U.S.C. 5107(b). 38 C.F.R. § 3.102. As the evidence of record is against the veteran's claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet.App. 49, 58 (1991). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs