Citation Nr: 0830000 Decision Date: 09/04/08 Archive Date: 09/10/08 DOCKET NO. 07-10 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: North Dakota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The veteran had active service from April 1951 to September 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran provided testimony at a September 2007 hearing before the undersigned. A copy of the transcript is associated with the claims folder. FINDING OF FACT Bilateral hearing loss did not have its onset during active service, did not manifest within one year of separation from active service, and is not otherwise etiologically related to the veteran's active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted (U.S. June 16, 2008) (No. 07-1209). In August 2006, VA sent the veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. Additionally, the August 2006 letter described how VA calculates disability ratings and effective dates. It also provided examples of evidence that the veteran could use to establish that he had a service- connected hearing loss disability. The Board finds that the content of the August 2006 letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the October 2006 rating decision and February 2007 SOC explained the basis for the RO's action, and the SOC provided him with additional 60-day periods to submit more evidence. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Moreover, the claimant has not asserted any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection In the present case, the veteran contends that he has a bilateral hearing loss disability resulting from acoustic trauma occurring during active service. Under the relevant laws and regulations, service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 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. This rule does not mean that any manifestation 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 identity 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). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, established that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The U.S. Court of Appeals for Veterans Claims 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 in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as organic diseases of the nervous system (e.g., sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at last three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even if disabling hearing loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The veteran's DD Form 214 indicates he served as an auto mechanic during the Korean War. He testified during the September 2007 hearing that he serviced tractors and other heavy equipment next to an airfield where very noisy jets and planes landed. The veteran's testimony is corroborated by an undated written statement received in June 2006 from N. U., a fellow veteran, who states that he worked at the same heavy equipment shop at George Air Force Base from November 1951 to September 1952, and that the shop was located next to a runway which "at times was rather loud." There is no evidence refuting the veteran's description of his working environment in the Air Force. Thus, the Board concedes, for the purpose of the present decision, that exposure to some loud noise may have occurred during active service while performing duties next to a runway. While some noise exposure is conceded here, this alone cannot serve as a basis for a grant of service connection. Rather, the evidence must show that the current hearing loss is a result of such in-service exposure. That has not been demonstrated here, as will be explained below. In the present case, the service treatment records are silent as to any complaints or evidence of hearing loss. Indeed, the August 1952 separation report of physical examination includes the results of hearing tests indicating that hearing acuity was normal. Specifically, the whispered voice test results were 15 out of 15. Following separation from service, a hearing loss disability was first demonstrated during a March 1992 audiological examination. This is also the first record after separation from service that demonstrates any symptoms of hearing loss. In this regard, the Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The March 1992 test revealed the following thresholds in decibels at the frequencies 500, 1000, 2000, and 4000 hertz (Hz), respectively: 30, 35, 50, and 65 for the right ear, and 35, 45, 55, and 80 for the left ear. Thus, the Board finds that the veteran does have a current hearing loss disability, as defined by the regulations. See 38 C.F.R. § 3.385. With regard to the presumptive service connection provisions in the law for chronic diseases, the evidentiary record herein is negative for any manifestation of sensorineural hearing loss within the veteran's first post-service year. Thus, because the evidence fails to establish any clinical manifestations of hearing loss within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease are not satisfied. Moreover, the weight of the competent evidence does not demonstrate a connection between the veteran's current hearing loss and active service. In the present case, the record of evidence contains a favorable opinion in the form of a September 2006 letter written by Dr. H. H. H., M.D. Dr. H. opined that it was more likely than not the veteran's noise exposure during active military service caused his hearing loss. The record of evidence also contains a September 2006 report of Dr. W. C. P., M.D., to whom the veteran was referred for an audiogram by Dr. H. Dr. P. diagnosed moderate to severe hearing loss caused by presbycusis (age-related factors) and that the veteran had possible "noise induced hearing loss from the past," although the doctor did not cite to the source of such noise exposure. The veteran reported that he worked on the flight line in service. By contrast, a September 2006 VA examination report contains an opinion opposite that reached by Dr. H. Specifically, the examiner opined that the hearing loss was less than likely related to the veteran's military service, and that post- service noise exposure was the most likely etiology for the veteran's hearing loss. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Veterans Appeals stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds that the unfavorable September 2006 opinion of the VA examiner carries a higher probative weight than the favorable opinion provided by Drs. H. and P. that same month. The VA examiner, in addition to reviewing the claims file, based his opinion on the history provided by the veteran, including the in-service and post-service noise exposure, as well as the 30 year gap in time between inception of hearing loss symptoms (early 1980s, per the veteran) and separation from service. By contrast, there is no indication that either Dr. H. or Dr. P. reviewed the veteran's medical history or claims file as part of their examinations. Neither doctor discussed the gap in time between the veteran's military service and symptoms of hearing loss disability. Further, Dr. P. did not opine that the hearing loss was related specifically to the veteran's military service. Finally, Dr. H's opinion is conclusory and appears to be speculative at best. Speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). For these reasons, Dr. H. and Dr. P's opinions are found to be less probative than the September 2006 VA examiner's opinion. Accordingly, the greater weight of the probative evidence fails to demonstrate a causal relationship between the current hearing loss and acoustic trauma during active service. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the present case, the veteran states that his hearing loss is related to exposure to the noise of planes on the runway next to his workplace in active service. During the September 2006 VA examination, the veteran stated he first noticed hearing loss symptoms in the early 1980s. Even if his statements can be construed as alleging continuity of symptoms since active service, the history as provided by the veteran places the inception of hearing loss 30 years after separation from service. Moreover, the absence of documented complaints or treatment for 40 years following military discharge is more probative than his current recollection as to symptoms experienced in the distant past. See Curry v. Brown, 7 Vet. App. 59 (1994). Therefore, continuity has not here been established, either through the competent medical evidence or through the veteran's statements. The Board recognizes the veteran's argument that the RO based its decision in part upon a test which the veteran considers unreliable, i.e., the whisper voice test. However, neither the veteran nor his representative have demonstrated the requisite medical training to render what amounts to a medical opinion. Furthermore, the September 2006 VA examiner relies not only on the veteran's separation examination, but also on the history provided by the veteran and review of the veteran's noise exposure during service in reaching his conclusion that the veteran's hearing loss is not related to his active service. Thus, even if the Board gave credence to the veteran's argument, the weight of the competent evidence remains unfavorable. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In this case, the weight of the competent evidence does not support a grant of service connection. The preponderance of the evidence is against the claim, and there is no doubt to resolve in the veteran's favor. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs