Citation Nr: 0714744 Decision Date: 05/17/07 Archive Date: 06/01/07 DOCKET NO. 05-09 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from November 1952 to October 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the veteran's claims for entitlement to service connection for hearing loss and tinnitus. In May 2007, a motion to advance this case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002 & Supp. 2005); 38 C.F.R. § 20.900 (2006). FINDING OF FACT The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's active service and currently diagnosed hearing loss and tinnitus. CONCLUSIONS OF LAW 1. Bilateral sensorineural hearing loss was not incurred in or aggravated by active military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 2. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, the March 2003 and April 2003 letters to the veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran to provide any information or evidence in his possession that pertained to the claims. Second, it is concluded by the Board that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2005). It is unfortunate that the veteran's service medical records are unavailable, but numerous efforts have been made to obtain them without success. There is indication in the record that they were destroyed in a fire in July 1973. Additional information and evidence associated with the claims file consist of the veteran's Surgeon General's Office (SGO) abstracts, private medical treatment records, an October 2002 VA audiological evaluation and an April 2003 VA nexus opinion. Also of record are numerous statements by the veteran and his representative regarding his claims. The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. Moreover, the Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the United States Court of Appeals for the Federal Circuit elaborated on VA's responsibility to obtain a veteran's service medical records. The Board finds, however, that in light of evidence that the records were destroyed in a fire there is no reasonable possibility that the missing records may be located or recovered, and thus no useful purpose would be served in remanding this matter for more development. In this case, the RO submitted requests to the NPRC on two occasions in 2003 asking for all available military medical and dental and personnel records for the veteran. The NPRC responded that the service medical records were probably destroyed in the above-mentioned fire, but some clinical records (SGO reports) were obtained. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). See also Hayre, supra [VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. So it is in this case. It is also noted that during the pendency of this appeal, 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 apply to all five elements of a service connection claim, including the rating and effective date of an award. For the reasons described below, service connection for the claimed disabilities is being denied and neither a rating nor an effective date will be assigned. As such, there is no prejudice to the veteran with respect to any notice deficiencies related to the rating or effective date. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Lastly, the Board has given thought as to whether a VA physical examination of the veteran and/or a medical nexus opinion should be obtained as specifically requested by the veteran's service representative in an April 2007 brief. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2006). However, as explained below the veteran has presented no competent medical evidence as to inservice audiological problems. In the absence of competent medical evidence of inservice acoustic trauma and current bilateral hearing loss and tinnitus (first diagnosed almost 50 years after service), additional examination of the veteran is not necessary. Referral for a medical nexus opinion is similarly not necessary. Moreover, the record includes a medical nexus opinion dated in April 2003. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). 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) (2006). Where there is a chronic disease shown as such in service or within the presumptive period under § 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. 38 C.F.R. § 3.303(b) (2006). This rule does not mean that any manifestations in service will permit service connection. To show 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 entity is established, there is no requirement of evidentiary showing of continuity. 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) (2006). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease such as sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2006). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Analysis The veteran contends that his bilateral hearing loss and tinnitus are the result of inservice acoustic trauma. As has been explained earlier, the veteran's service medical records have been lost, with the exception of SGO reports which show inservice treatment for urethritis but no evidence of audiological problems. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the veteran's claims has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. As detailed above, in order to establish service connection for the claimed disorder on a direct basis, there must be (1) medical evidence of a current disability; (2) evidence of the inservice incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to the veteran's claim for bilateral hearing loss and tinnitus, an October 2002 VA examiner diagnosed the 70 year old veteran with bilateral sensorineural hearing loss. It was also noted that the veteran had occasional tinnitus, bilaterally. Accordingly, Hickson element (1) has been met for these claims. However, with respect to Hickson element (2), inservice incurrence of disease or injury is not indicated by the record. Moreover, with respect to crucial Hickson element (3), medical nexus, an April 2003 VA examiner noted that the veteran had a history of ear disease in childhood but no acute disease while the army. He had no audiogram performed on separation. His inservice primary work was as a clerk, and he only fired his weapon during training and for familiarity on the range. Also, there was no history of head trauma. Examination of the external ears and canals was normal. His tympanic membranes were intact, but there was tympanosclerosis and a healed central perforation in the left tympanic membrane. The examiner noted that he could identify a "SC cause" for the veteran's hearing loss. This is the only competent medical opinion of record. To the extent that the veteran himself believes that there is a medical nexus between his hearing loss and tinnitus and service, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as cause of a disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994 and see Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board is of course aware of the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology. It does not appear, however, that the veteran has contended that he experienced hearing loss or tinnitus continually after service. In fact, he reported in October 2002 that he noticed difficulty with his hearing during the last 5 years. His lack of complaints for over 40 years after service in fact supports the April 2003 VA examiner's opinion that the veteran's hearing loss and tinnitus are not of service origin. The Board does not doubt the veteran's sincerity in pursuing this claim. However, his own opinions are outweighed by the competent medical evidence of record. See Voerth v. West, 13 Vet. App. 117, 119 (1999) [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus]. Accordingly, Hickson elements (2) and (3) have not been met for the claims on appeal. Thus, the veteran's claims fail. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs