BVA9508363 DOCKET NO. 93-08 308 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from February 1963 to December 1966. In accordance with the provisions of Thurber v. Brown, 5 Vet.App. 119 (1993), the representative was provided with a copy of the medical literature cited in this decision, in a letter dated in March 1993. The veteran's representative submitted additional written argument in March 1995. It was argued the case should be remanded for due process consideration, in that notice of the evidence developed was not sent to the claimant. The Board of Veterans' Appeals (Board) has been advised by the General Counsel of the Department of Veterans Affairs (VA) that the Board's current practice of providing notice of evidence developed or obtained subsequent to the issuance of the most recent statement of the case or supplemental statement of the case is consistent with the general rule of law that notice to the representative is notice to the client. The General Counsel specifically stated that the practice of providing copies of medical opinions only to a claimant's representative (where the claimant is represented), as provided in 38 C.F.R. § 20.903, is consistent with the general rule of law that notice to the representative is notice to the claimant. The General Counsel did not indicate that issuance of a supplemental statement of the case is required when evidence is obtained under these circumstances, or that the evidence must be considered by the agency of original jurisdiction or provided separately to the local representative. Absent an overriding provision of law, we find that the evidence in question was provided to the representative in this case, and that such provision satisfied the requirement of notice. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in essence, that he developed a bilateral hearing loss with tinnitus due to his exposure to loud noise while serving in Vietnam in 1966. Specifically, he maintains that he served approximately one year in Vietnam and while not in actual combat, he served in a helicopter rescue unit. He voluntarily participated on several search missions looking for downed aircraft and exchanging helicopter batteries in the Philippines. He notes that he was also nearby when a Post Office was "blown up" at Da Nang Air Force Base by incoming mortar shells. As the attacks occurred, he was sleeping and had no time for reaching for hearing protection. He maintains that his hearing began to deteriorate in the year that he was in Vietnam and had slowly progressed to the present. He argues that he has lived with hearing problems since 1967 and that no one had told him to go to the Department of Veterans Affairs (VA) Regional Office (RO). He maintains that the evidence of record including multiple lay statements submitted on his behalf supports his claim of service connection for defective hearing and tinnitus. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for bilateral defective hearing and tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition in the veteran's appeal has been obtained by the RO. 2. Neither a hearing loss nor tinnitus was present in service or for many years thereafter. 3. The veteran's current hearing loss and tinnitus, first shown after exposure to intercurrent occupational noise for a number of years, are not the result of acoustic trauma during service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by wartime service nor may a sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.307, 3.309, 3.385(1994). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty To Assist We have found that the veteran's claims are "well grounded" within the meaning of the statute and judicial construction. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Therefore, the VA has a duty to assist the veteran in the development of facts pertinent to his claims. In this regard, we note that the evidence currently of record consisting of the veteran's service medical records, post service VA clinical data, including a report of a VA examination in January 1992, multiple lay statements, private medical data and transcript (T) regarding testimony given by the veteran before a hearing officer at the RO in September 1992 have been included in the veteran's claims file. Although the veteran reported a history of private medical treatment during the mid-1970's in which he was told that he had abnormal hearing, he indicated that such records were not available. (T. 8). Thereafter, the first abnormal hearing test was in the late 1980's, which is of record. (T. 8). he indicated that following separation from service he joined the Air Guard for a few months but no hearing tests were undertaken. (T. 9). While the veteran also referred to service in the Army National Guard for approximately 3 to 4 years between the mid to late 1970's (T. 10) the RO determined that attempting to obtain such records would serve no useful purpose based upon the total record. As it stands, the Board is of the opinion that the current evidence of record provides a sufficient basis to address the merits of the veteran's claims as there is no indication that there are additional pertinent available records which the RO has not attempted to obtain. Accordingly, no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). II. Pertinent Law And Regulations Service connection may be established for a disability resulting from personal injuries suffered or disease contracted in line of duty, or for aggravation of preexisting injuries suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that service connection may be granted for any disability 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) (1994). If the disorder is a sensorineural hearing loss, service connection may be granted if such hearing loss is manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The determination of whether the veteran has a ratable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000, Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. Department of Veterans Affairs, 38 C.F.R. Part 3; Disability Due to Impaired Hearing, 59 Fed. Reg. 60560 (1994) (to be codified at 38 C.F.R. § 3.385). The record shows that the veteran's military occupational specialty was that of an administrative specialist and that he did not participate in combat. The provisions of 38 U.S.C.A. § 1154(b) (West 1991) are not for application. The veteran does not contend otherwise. When all the evidence is assembled, the 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). III. Bilateral Hearing Loss Disability and Tinnitus The veteran primarily maintains that he developed bilateral hearing loss and tinnitus due to exposure to several shellings during his tour of duty in Vietnam as well as to aircraft noise as an occasional volunteer during rescue missions. It is requested that the Board consider all appropriate United States Court of Veterans Appeals (Court) decisions regarding claims of entitlement to service connection for hearing loss. An historical review of the evidence shows that the veteran's service medical records are entirely silent for any complaint or finding regarding hearing loss or tinnitus. A report of an enlistment examination dated in February 1963 reflected normal objective evaluation in the ears, as well as a normal bilateral hearing acuity by audiometric evaluation as follows: Hertz 250 500 1,000 2,000 3,000 4,000 6,000 Right (not tested ) 5(20) 0(10) 0(10) 0(10) 0(5) 0(10) Left (not tested ) 5(20) 10(20) 0(10) 0(10) 0(5) 0(10) The units in parentheses represent ISO units in effect following October 31, 1967, for comparative purposes. There was no mention of tinnitus. In a report of a physical examination in November 1966, for purposes of separation from active duty, an objective evaluation of the ears was normal. While hearing acuity testing was not undertaken to include audiometric evaluation, the veteran denied any other medical history, aside from complaints involving the genitourinary symptoms. In March 1967, the veteran filed an application for service- connected compensation benefits for multiple disorders claimed to have had their onset in Vietnam; there was no mention of hearing loss or tinnitus. The record is negative for any pertinent complaint until the veteran first filed an application for service-connected compensation benefits for hearing loss and tinnitus in October 1991. Received in support of his claim was a private report of a "Comprehensive Evaluation," dated in July 1987, from M. C. Fagan, M.D. It was noted that the veteran worked as a printer at the time. He complained of having had decreased hearing since he worked in the Air Force. On objective examination, some decreased bilateral hearing was indicated. There was no mention of tinnitus. Other evidence submitted by the veteran included a photograph of him apparently during service. Also submitted was a newspaper article in which it was noted that President Johnson had presented a Presidential unit citation for extraordinary gallantry to the Air Force's 38th Air Rescue Squadron for lifesaving helicopter operations in the Republic of Vietnam. No names were mentioned. Also submitted was a copy of a letter that the veteran had apparently sent to M. E. postmarked January 26, 1966, in which he noted that an attack had taken place in Da Nang the night before on January 24, 1966, (the letter was dated January 25, 1966, and the envelope was postmarked January 26, 1966) and that four "guys" were killed. The mortar fire hit less than half a block from him and he noted that he "hit" the bunker for about two hours. There was no mention of any problems with his hearing or tinnitus. On a VA discharge summary, dated in October 1991, it was noted that a physical examination revealed decreased hearing and tinnitus. He could hear rubbing of fingers only within one-half inch of his left ear and two inches from his right ear. When the veteran was examined by the VA in January 1992, he indicated that he had served around aircraft in Vietnam and that he had been near exploding rounds or rockets fired into his base. He also reported working in printing for over 20 years. A sensorineural hearing loss was found to be present; constant tinnitus aurium was also reported. In a statement, dated in March 1992, the veteran's father-in-law, J. A. E. and mother-in-law, E. E., reported that they had known the veteran since 1964 and that his hearing was fine until he returned from his tour of duty in Vietnam. They indicated that over the years his hearing had grown worse. In a statement dated in March 1992, the veteran's wife essentially noted that the veteran's hearing had decreased since his tour of duty in Vietnam. Other statements from the veteran's brother, son, daughter, mother, and father, dated in April 1992, essentially refer to a long history of hearing problems since the veteran's return from Vietnam. A private audiometric study dated in August 1992 also confirmed the presence of a sensorineural hearing loss. In a statement dated in September 1992, Dr. Juan P. Esteve, a former Spanish professor at Metropolitan State College, between the autumn quarter of 1968 to the spring quarter 1977, referred to a telephone conversation that he had with the veteran the week before. He noted that he recalled talking to the veteran about his Vietnam experiences and that the veteran always wanted to sit in the front row to make sure that he heard him well during class. He indicated that this was all he could remember regarding the matter. The veteran was afforded a personal hearing at the regional office before a hearing officer in September 1992. He dated the onset of hearing loss and tinnitus to exposure to acoustic trauma during active duty. He also noted that following service, he worked between approximately 1966 to 1990 at various printing companies, working a printing press of various sizes (press operator). He worked for large and small companies over the years. He noted that he had his first abnormal hearing test back in the late 1980's or 1987, although he had first mentioned such problem in 1974 when he had wax removed from his ear. He indicated that these records were no longer available. The veteran has a hearing loss within the criteria provided in 38 C.F.R. § 3.385. The question for consideration is whether this hearing loss, first confirmed many years after service, is the result of his military service. The Board notes that medical literature states that exposure to noises of sufficiently high intensity may result in a temporary or permanent loss of hearing. The loss may occur in two different ways: Either from long-term exposure to a hazardous noise environment (noise-induced hearing loss) or from short-term exposure to a single blast of intense noise (acoustic trauma). The onset of hearing loss in acoustic trauma is "characteristically instantaneous." In contrast, the onset of noise-induced hearing loss is "characteristically insidious." A temporary loss of hearing occurs, which recovers within a few days after noise exposure ceases. With excessive noise exposure, however, the recovery process does not occur, and a permanent sensorineural hearing loss is effected. S. Jerger and J. Jerger, Auditory Disorders: A Manual For Clinical Evaluation, 119-123 1981). Therefore, one could reasonably expect a hearing loss to have occurred during service or in close proximity thereto if the loss were based on an incident during service. The veteran's service medical records are entirely silent for any complaint, finding, or treatment for hearing loss or tinnitus. Shortly following separation from active duty, the veteran filed an application for service-connected compensation benefits for various disorders which he related to Vietnam; however, there was no mention of any problems with hearing loss or tinnitus. In fact, neither a hearing loss nor tinnitus was not noted until approximately mid 1987, more than 20 years following separation from active duty. Moreover, there was no etiologic link demonstrated with service objectively or otherwise, especially in view of the obvious extensive exposure to hazardous occupational noise while working as a printing operator beginning in 1966 until 1990's. We note that any medical opinion as to onset of hearing loss was based on the veteran's claimed medical history and is clearly unsupported by the evidence of record. Accordingly, such opinion is not probative or material to the central issue. Elkins v. Derwinski, 5 Vet.App. 474 (1993). Significantly, we note that the recently dated lay statements submitted in support of the veteran referring to history of hearing problems following separation from service are unsupported by the evidence of record. The evidence reflects that, although the veteran filed an application for compensation benefits shortly after service, in which he complained of problems he related to his Vietnam service, he failed to mention having any problems with hearing loss or tinnitus. The veteran's former Spanish teacher indicated that the veteran sat near the front to be certain to hear him; however, this behavior would not be sufficient to establish the presence of a hearing loss or tinnitus. The absence of complaints of or treatment for, a hearing loss or tinnitus in service, when combined with the silence of the record in close proximity to service, as well as the lack of credible supporting objective evidence attributing the claimed disability to service, is more probative than statements based upon memory. Also, with regard to the etiology of any current hearing loss, the veteran is not shown to be competent to make any finding as to medical causation. Evidence that requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, the preponderance of the evidence is against a claim of service connection for bilateral defective hearing and tinnitus. ORDER Service connection for bilateral hearing loss disability and tinnitus is denied. V. L. JORDAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.