Citation Nr: 0810769 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-30 426 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and wife ATTORNEY FOR THE BOARD J. D. Watson, Associate Counsel INTRODUCTION The veteran served on active duty from January 1969 to September 1970, to include combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 RO decision, which denied service connection for a bilateral hearing loss disability. In August 2007, the Board reopened the veteran's claim for service connection and remanded it for additional development. It now returns for appellate consideration. The veteran testified before the undersigned at an April 2007 videoconference hearing. A transcript has been associated with the file. FINDINGS OF FACT 1. The veteran experienced acoustic trauma during his combat service in Vietnam. 2. The evidence clearly and unmistakably shows that the veteran had a right ear hearing loss disability at entry to service, and there was no permanent aggravation of that disability during service. 3. The veteran currently has a left ear hearing loss disability; however, the preponderance of the evidence is against a causal link between the veteran's current left ear hearing loss and any incident in service, including exposure to acoustic trauma during combat service. CONCLUSIONS OF LAW 1. A right ear hearing loss disability was not incurred in or aggravated by service, and sensorineural hearing loss of the right ear may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2007). 2. A left ear hearing loss disability was not incurred in or aggravated by active service, and sensorineural hearing loss of the left ear may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, 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, on the claim. The veteran must not assume that the Board has 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 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. 38 U.S.C.A. § 5103(a) (West 2002); 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 United States Court of Appeals for Veterans Claims (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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, a letter dated in November 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The November 2004 letter also told the veteran to provide any relevant evidence in his possession. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating 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 Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. The duty to assist also 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. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the veteran has been afforded multiple VA medical examinations to determine whether he had a bilateral hearing loss disability that could be directly attributed to service, most recently in October 2007. Further examination or opinion is not needed on the claims because there is sufficient evidence to decide the claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated in the line of active military duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, 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). In addition, an organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. 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. 38 C.F.R. § 3.385. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that 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). A claim for service connection generally requires: (1) competent evidence of a current disability; (2) proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and (3) competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Board notes that, for injuries or diseases alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996). Specifically, VA regulations provide that, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). The analysis required by 38 U.S.C.A. § 1154(b), however, applies only as to whether an injury or disease was incurred or aggravated at that time, i.e., in service. It does not apply to the questions of whether there is a current disability or a nexus connecting any current disability to service. See Collette, Gregory, supra. The provisions of 38 C.F.R. § 1154(b) do not obviate the requirement that a veteran submit medical evidence of a causal relationship between his current condition and his military service. Wade v. West, 11 Vet. App. 302 (1999). The veteran contends that he has a bilateral hearing loss disability that resulted from acoustic trauma during service. The veteran was awarded a Purple Heart after being wounded by shrapnel from an exploding booby trap in July 1969. There is no record of complaints, findings, or treatment for hearing loss pursuant to this incident. However, the veteran states that he suffered a temporary loss of hearing following the explosion, and he contends that his current hearing loss disability is due to that explosion during service. Although the veteran's statements that he suffered temporary hearing loss following a combat explosion are accepted as fact, the Board nevertheless has a duty to determine whether there is a causal relationship between the veteran's current condition and his military service. See id. For the reasons that follow, the Board concludes that service connection is not warranted. a. Right Ear At the veteran's induction examination, conducted in March 1968, the veteran reported no problems with his ears, and the examiner noted that the veteran's ears were normal. However, on audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 N/A 40 The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b) (2007). A veteran who served during a period of war, as the veteran in this case, is presumed to be in sound condition when he entered into military service except for conditions noted on entrance medical examination. 38 U.S.C.A. § 1111 (West 2002). Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service, the presumption does not attach, and the issue becomes whether the disease or injury was aggravated during service. Id. In this case, the veteran's induction examination shows that he had a right ear hearing loss disability for VA purposes at the time of his induction, and thus the presumption of soundness does not attach for that condition. The veteran shall be considered to have had a right ear hearing loss disability prior to service. Since a right ear hearing loss disability was shown prior to service, as discussed above, the veteran cannot bring a claim for service connection for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). At the veteran's separation examination, conducted in August 1970, the veteran reported experiencing hearing loss, but the examiner noted that the veteran's ears were normal. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 N/A 40 Whispered voice testing conducted at that examination showed 15/15 for both ears. In sum, service medical records show that the veteran had a right ear hearing loss disability upon induction. Upon separation, the veteran's right ear hearing acuity was noted as being the same (i.e. 40 decibels at 4000 Hertz). Thus, despite the veteran's contentions to the contrary, the service medical records show that his right ear hearing acuity actually remained the same during service and did not undergo a worsening. There is clear evidence of current hearing loss of the right ear, as evidenced by multiple VA examinations. 38 C.F.R. § 3.385. Regarding nexus between current disability of the right ear and service, there are several opinions on file which address this matter. In September 2000, the VA examiner provided an etiology opinion. In that opinion, the examiner stated that the veteran had an existing mild high frequency hearing loss on induction and had the same type of hearing loss on separation. In other words, there was no inservice aggravation of hearing loss. It was concluded that the veteran's hearing loss was less likely than not due to acoustic trauma during service. In February 2006, the veteran submitted a private audiological opinion. In that opinion, the private audiologist noted: the veteran's combat service, the veteran's allegation that he temporarily lost hearing during service, and the veteran's post-service occupation as a welder. The audiologist concluded that acoustic trauma during service most likely aggravated and significantly contributed to the veteran's current hearing loss, and that the veteran's occupational noise exposure post-service was not a contributing factor to his hearing loss. In June 2006, VA requested a medical opinion in light of the veteran's submission of a private audiological opinion. In his own opinion, the VA audiologist reviewed the findings in the private audiological opinion, noted that the veteran had some preexisting hearing loss, and found that the service medical records showed that it did not increase during military service. In addition, the VA audiologist also noted that the veteran had a significant history of non-service noise exposure. He stated that the private audiological opinion amounted to mere speculation and concluded that the veteran's hearing loss disability was less likely than not due to in-service noise exposure. Following an October 2007 VA examination, it was determined that the veteran's audiometric readings during service showed no hearing deterioration from induction to discharge and, in fact, showed a slight improvement. Consequently, the examiner concluded that the veteran's hearing loss was less likely than not caused by, or a result of, noise exposure during service. In sum, despite the veteran's exposure to acoustic trauma during service, the preponderance of the evidence is against a finding that the veteran's right ear hearing loss disability was aggravated as the result of any in-service acoustic trauma. The evidence against the veteran's claim for service connection consists of three negative VA audiological opinions, as well as service medical records showing that the veteran's right ear hearing acuity remained the same from induction to separation. The evidence in favor of service connection consists of a private audiological opinion and the veteran's own statements, both of which associate his hearing loss disability to service. The Board finds that the private audiological opinion is outweighed by the multiple VA opinions to the contrary as well as the actual inservice evidence failing to show an increase in disability during active duty. In addition, the veteran, as a lay person, has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the Board concludes that service connection for a right ear hearing loss disability is not warranted. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the veteran's claim, and it must be denied. See Gilbert, supra. b. Left Ear As mentioned above, at his March 1968 induction examination, the veteran reported no problems with his ears, and the examiner noted that the veteran's ears were normal. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 N/A 35 At the veteran's separation examination, conducted in August 1970, the veteran reported experiencing hearing loss, but the examiner noted that the veteran's ears were normal. On audiogical evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 0 N/A 0 In essence, the service medical records show that his hearing acuity in the left ear improved during service (i.e., improving from 35 decibels at 4000 Hertz on induction examination to 0 decibels at 4000 Hertz on separation examination.) There is no evidence of left ear hearing loss from 1970 to 1999. In October 1999, the veteran submitted private audiological reports, which included audiological results from between 1994 and 1999, showing moderately severe left ear hearing loss. 38 C.F.R. § 3.385. Despite the veteran's exposure to acoustic trauma during service, the preponderance of the evidence is against a finding that the veteran's left ear hearing loss disability is the result of that in-service acoustic trauma. The evidence against the veteran's claim for service connection consists of three negative VA audiological opinions, discussed in great detail, above, as well as service medical records showing that the veteran's left ear hearing actually improved from induction to separation. Furthermore, the first evidence showing that the veteran had a left ear hearing loss disability for VA purposes is a private audiological report showing audiometric results from between 1994 and 1999. The passage of many years between discharge from active service and the medical documentation of a claimed disability weighs heavily against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The evidence in favor of service connection consists of a private audiological opinion and the veteran's own statements, both of which associate his hearing loss disability to service. The Board finds that the private audiological opinion is outweighed by the multiple VA opinions to the contrary as well as the lack of a disability on separation from service, and the length of time between service and the first diagnosis of a hearing loss disability. In addition, the veteran, as a lay person, has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the Board concludes that service connection for a left ear hearing loss disability is not warranted. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the veteran's claim, and it must be denied. See Gilbert, supra. ORDER Service connection for a bilateral hearing loss disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs