Citation Nr: 0731148 Decision Date: 10/03/07 Archive Date: 10/16/07 DOCKET NO. 04-43 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Henning, Associate Counsel INTRODUCTION The veteran served on active duty from July 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran's claims are currently under the jurisdiction of the Wichita, Kansas, RO. FINDINGS OF FACT 1. The veteran's hearing loss was first objectively identified many years after his discharge from service and is not the result of a disease or injury in service. 2. The veteran's tinnitus was first reported many years after his discharge from service and is not the result of a disease or injury in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by the veteran's active service and sensorineural hearing loss may not be presumed to be of service onset. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307(a)(1), 3.307(a)(3), 3.385, 3.309, 3.309(a) (2007). 2. Tinnitus was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail all of the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the claims on appeal. It is reasonable to conclude that the Board has not overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims, 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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) VA must specifically request that the claimant provide any evidence in his possession that pertains to the claim. Prior to the initial adjudication of the veteran's claims, an April 2004 VA notice letter fully satisfied the VCAA duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter instructed him to provide any relevant evidence in his possession. See Pelegrini II, supra. Since the Board has concluded that the preponderance of the evidence is against the veteran's claims for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran's VA medical treatment records and identified private medical records have been obtained to the extent available. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). There is no indication in the record that any additional evidence relevant to the issues decided herein is available but is not part of the claims file. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In June 2004 the veteran was afforded a VA examination for hearing loss and tinnitus. See 38 C.F.R. § 3.159(c)(4) (2007). This examination is adequate for purposes of the Board's decision of this appeal. There is no indication that any failure on the part of VA to provide additional notice or assistance would reasonably affect the outcome of this case. Therefore, such failure, if identified, would be harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The Merits of the Claims The veteran seeks service connection for his hearing disabilities. He asserts that his current hearing loss and tinnitus are a result of his exposure to the constant firing of weapons, including Howitzers, during his military service. His military occupational specialty was cannoneer. In general, service connection may be granted for disability resulting from a disease or an injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002 & Supp. 2006). Service connection may be granted for a disability first diagnosed after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. See 38 C.F.R. § 3.303(d) (2006); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his in-service experiences or current symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In order to establish direct service connection, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in- service incurrence of a disease or an injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The second and third elements noted above can be demonstrated through a continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology a claimant must show (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. Id. The veteran's claims file in this case includes medical evidence of a current disability. The report of a June 28, 2004, audiology examination performed at the Kansas City, Missouri VA Medical Center concludes with a diagnosis of sensory hearing loss in each ear. The report also notes bilateral, constant presence of tinnitus dating from the veteran's military service. The Board acknowledges receipt of evidence that satisfies the first element required to establish service connection. The record also contains lay evidence of in-service exposure to loud noise, which the veteran believes caused his hearing impairments. The lay evidence consists of the veteran's statements that he was exposed to constant firing of weapons, particularly Howitzers, during his military service. As noted above, the Board finds the veteran's personal accounts of his in-service exposure to loud noise competent evidence of that exposure. See Layno, supra. The veteran's claims file is lacking the third form of evidence required to establish service connection for a disability, that is, medical evidence of a nexus between the veteran's currently diagnosed bilateral sensory hearing loss and noted bilateral tinnitus, and his assertions that his exposure to loud noise when he was in military service caused his hearing impairment. The medical evidence of record includes the veteran's May 1971 military discharge medical examination report which shows that his hearing was normal at that time. Although the veteran indicates on his March 2004 claim form that his hearing disability began in 1970, no medical evidence after the veteran's discharge examination is dated earlier than 2004. The veteran states that his hearing loss was diagnosed in 1981 at a wellness fair sponsored by his employer, but he states further that no record was kept of that diagnosis. The record includes a February 2, 2004, audiometric record from the offices of F. Katz, M.D., and C. Johnson, M.D., noting sensorineural hearing loss, but no doctor's report interpreting the data on the audiometric record is included. The absence of a doctor's statement concerning a relationship between a possible hearing disability and the veteran's military service means this evidence is not medical evidence of a nexus between the veteran's current hearing impairments and his military service. The audiometric record is merely indicative of the veteran's hearing at the time the record was made. A June 28, 2004, VA Audiological Evaluation reports subjective findings that the veteran has experienced bilateral tinnitus since service. The report concludes that the veteran has some hearing loss in each ear, and that there is less than a fifty-fifty probability that the hearing loss and tinnitus were caused by or a result of military service. The report expressly states that it is less likely that the veteran's hearing impairments are a result of his military service than likely that they are a result of his service. Therefore, for purposes of service connection, the Board finds that this report cannot fulfill the legal requirement for medical evidence of a nexus between the veteran's current hearing impairments and his military service. See Hickson, supra. While the veteran states that he experienced his currently diagnosed hearing disabilities in service and thereafter, no medical evidence of the disabilities pre-dates 2004, more than 32 years after the veteran was discharged from military service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability, thus allowing that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003). The evidence in the claims file and of record in this case is not sufficient to establish direct service connection for the veteran's current hearing disability because it does not include medical evidence of a nexus between that disability and the veteran's military service. Further, as explained below, the evidence does not establish a continuity of symptomatology that could satisfy the requirement for nexus evidence. See Barr, supra. In a statement submitted by the veteran with his September 2004 Notice of Disagreement, the veteran said his ears would ring after Howitzers were fired directly over his head as he tried to sleep when he was in the military. He said he always experienced background ringing in his ears after that but he didn't complain because the problem was not severe. He said the early stages of hearing loss and tinnitus were just minor annoyances over the years. He specifically recalls undergoing a test during a wellness fair provided by his employer in 1981. Although he said no records of the test were provided, he recalls that it showed he had hearing loss at that time. The Board finds that the veteran is competent to testify to his hearing impairment symptoms and his exposure to loud noises in the military. However, this testimonial evidence is outweighed by the medical evidence that expressly concludes that there is less than a fifty-fifty likelihood that the veteran's hearing loss and tinnitus resulted from his military service. See Layno, supra. at 470 (Court has held that lay testimony is not competent to prove a matter requiring medical expertise). With regard to the decades-long evidentiary gap in this case between active service and the earliest medically documented complaints of hearing loss and tinnitus, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury in service which resulted in chronic disability or persistent symptoms thereafter. 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); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing hearing impairment complaints, symptoms, or findings for thirty-two years between the veteran's period of active duty and the medical reports dated in 2004 is itself evidence which tends to show that the veteran's currently diagnosed hearing disability did not have its onset in service. The Board finds that the record in this case lacks evidence to establish continuity of symptomatology and lacks evidence to establish a nexus between the veteran's current hearing disability and his military service. For the reasons and bases discussed above, a reasonable doubt does not exist regarding the veteran's claim that his current hearing disability is related to service. There is not an approximate balance of positive and negative evidence. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs