Citation Nr: 0810107 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-19 105 ) 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: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran had active service from January 1951 to October 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that rating decision, the RO denied service connection for bilateral hearing loss. The veteran's disagreement with this denial of service connection led to this appeal. The veteran testified before the undersigned Veterans Law Judge in August 2005. A copy of the transcript of this hearing has been associated with the claims file. Subsequent to this hearing, the veteran has submitted additional evidence. Through his representative, the veteran has waived initial consideration of this evidence by the agency of original jurisdiction (AOJ), the RO in this case. See 38 C.F.R. § 20.1304(c). In March 2008, the Board granted a motion to advance the veteran's appeal on the docket. See 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Hearing loss was not shown during service or for many years thereafter; the preponderance of the evidence is against a nexus between current hearing loss in either ear and any incident of service, to include exposure to excessive noise. CONCLUSION OF LAW Bilateral hearing loss was not incurred or aggravated during active service, nor may sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated in May 2004, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was not provided as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board specifically finds, however, that the veteran is not prejudiced in this case as his claim is for entitlement to service connection and he was given specific notice with respect to the elements of a basic service-connection claim and cannot be prejudiced by not receiving notice of downstream issues that are not reached by a denial of the underlying benefit. Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the May 2004 letter was issued before the August 2004 rating decision from which this appeal stems; and, thus, the notice was timely. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony. As noted above, the veteran testified before the Board in August 2005. It also appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file, and the veteran does not appear to contend otherwise. In August 2004, the veteran was afforded a VA audiology examination. The Board finds that the examination report provides competent, non-speculative evidence regarding the issue before the Board; there is no duty to obtain another examination or another opinion. See 38 C.F.R. § 3.159(c)(4). Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, including an organic disease of the nervous system, e.g., sensorineural hearing loss, will be presumed to have been incurred in service if manifested to a compensable degree within a year after service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Board notes, that 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The veteran served during the Korean conflict and was awarded the Combat Infantry Badge (CIB) for his service. The veteran testified that he was exposed to acoustic trauma from exploding land mines and mortar fire. He has contended that his current bilateral hearing loss is attributable to this acoustic trauma. In a letter received in June 2004, the veteran asserted that his hearing loss could also be attributable to hemorrhagic fever he contracted during service. In his August 2005 testimony before the Board, the veteran stated that acoustic trauma caused him to lose his hearing for periods of time while in service. The veteran indicated that he had "some" hearing loss at the time of service but that it has progressively worsened, with a more pronounced hearing loss being noticed in the 1970s. Service medical records do not indicate that the veteran received any treatment related to hearing loss. The reports of medical examination dated in October 1950 (prior to service) and October 1952 (at the time of separation from service) indicate that whisper voice testing was 15/15 or normal in both ears. In an August 1952 record, a clinician reviewed the veteran's systems. The clinician noted that the veteran had no complaints regarding his ears. Another record documents the veteran's treatment for illness in August and September 1952. Final diagnosis was hemorrhagic fever (Manchurian type) acute. No residuals of the hemorrhagic fever were noted at the time of discharge. The veteran underwent a VA examination in August 2004. The examiner noted review of the claims file. The veteran reported to the examiner that he did demolition and cleared mine fields during service. The examiner noted that the veteran reported having service, occupational, and recreational noise exposure. Testing showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 70 90 85 LEFT 15 20 75 95 90 The veteran's speech recognition scores using the Maryland CNC Test were 88 percent in the right ear and 80 percent in the left ear. The examiner found that the veteran had bilateral hearing loss. The examiner noted, while the veteran did report noise exposure while in service, the physical examination conducted at the time of entry and separation showed no evidence of hearing loss, nor were there any records within a reasonable time of discharge to support his service as the probable causative factor for the hearing loss found on examination. The examiner also noted that the veteran had a lengthy history of post-discharge occupational noise exposure. She indicated that the audiological testing performed during the VA examination, which she noted was nearly 52 years after discharge from service, was not sufficient to connect the current hearing loss to service. The examiner opined, therefore, that she could not relate the current hearing loss to the veteran's service without further substantiating audiometric evidence obtained closer to the time of service. As noted above, the examiner referred to occupational noise exposure, but records from this period of employment were not of record at that time. The claims file now contains medical records from this period of employment. The claims file contains a February 1976 "Health Form." Review of this record indicates that the veteran reported no hearing problems. The veteran reported no exposure to excessive noise. In a November 1976 treatment record, a clinician noted that the veteran was a new hire. The clinician noted that the veteran had high frequency hearing loss but was not aware of having tinnitus. The clinician indicated that the veteran had not had audiological testing completed previously. In a June 1978 "Health Form," a clinician diagnosed bilateral high frequency hearing loss. Testing completed at this time showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 55 60 LEFT 5 10 55 70 65 Subsequent examinations also show that that the veteran was found to have hearing loss. Analysis The Board finds that service connection for bilateral hearing loss is not warranted. The Board first notes that the evidence indicates that the veteran has a current bilateral hearing loss disability, as defined by VA regulations. See 38 C.F.R. § 3.385. As the veteran received a CIB, the Board also finds that the veteran engaged in combat. Based on this and the veteran's credible testimony, the Board finds that the veteran was exposed to the sounds of explosions during service. In this regard, the Board highlights that a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. See 38 U.S.C.A. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. In this case, while the evidence indicates that the veteran has a current hearing loss disability and the veteran was exposed to sounds of explosions during service, there is no competent evidence that links the current hearing loss to acoustic trauma experienced in service or to any of incident of service, to include fever. Initially, there is no medical evidence that the veteran had a hearing disability at the time of discharge from service. Additionally, the next evidence of record at the time of the veteran's employment in February 1976, about 24 years after service separation, showed no report of hearing problems. The Board notes, that in the August 2004 examination, the examiner noted that the veteran had an occupational exposure to noise and did not find a connection between the current hearing loss disability and service. The Board has reviewed the employment medical records the veteran submitted. These medical records do not contain an opinion that the hearing loss was due to the veteran's service. As noted, these records indicate that the veteran did not report any hearing problems in February 1976, and there is no reference to service-related noise exposure or hearing difficulties. Later, the veteran was found to have hearing loss in November 1976 and again there is no reference in that record regarding service-related noise exposure or prior hearing loss. Rather, the notes advise the veteran to wear hearing protection in noise situations and subsequent records show that he continued to be monitored at work for any effects on his hearing. Thus, these records, dated decades after service, do not tend to support the veteran's claim of service-induced hearing loss. The veteran is competent to testify as to his noticing some degree of hearing loss and there is no reason to doubt his credibility. See Washington v. Nicholson, 19 Vet App 362 (2005), citing Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). While the veteran asserts that his current hearing loss is related to service, however, he is not deemed competent to provide a medical opinion on the diagnosis of a hearing loss disability, as defined by the applicable regulation, 38 C.F.R. § 3.385, nor is he competent to provide an opinion on the etiology of his hearing loss disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the veteran's lay assertions have been considered, they do not outweigh the competent and most probative medical evidence of record, which does not show that the veteran's current hearing loss is related to service. Therefore, the competent medical evidence indicates that there is no nexus between the service noise exposure and current hearing loss. The Board notes that the November 1976 treatment record is the earliest medical evidence of record that the veteran had been diagnosed as having hearing loss, approximately 24 years after the veteran was discharged from service. As there is no competent evidence that the veteran had a compensable hearing loss disability within one year of discharge from service, VA regulations regarding presumptive service connection for sensorineural hearing loss are not applicable. See 38 C.F.R. §§ 3.307, 3.309. The Board has considered the veteran's lay testimony that he has had hearing loss since the time of service, but the probative value of this evidence is outweighed by absence of contemporary medical evidence and other medical reports that do not corroborate his assertions. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered in service connection claims). As the preponderance of the evidence is, regrettably, against the claim, the benefit of the doubt doctrine is not applicable and the veteran's claim for service connection for bilateral hearing loss must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ M. Sabulsky Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs