Citation Nr: 0811158 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-08 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from August 1973 to August 1976, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bilateral hearing loss. FINDING OF FACT 1. The veteran's high-frequency sensorineural hearing loss in his left ear existed prior to service and was not aggravated in service. The veteran's current left ear hearing loss is not related to service or any aspect thereof, including noise exposure. 2. The veteran's current hearing loss in right left ear first manifested many years after service is not related to service or any aspect thereof, including noise exposure. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R § 3.303 (2007). When no preexisting condition is noted at the time a veteran enters service, the presumption of soundness arises and the veteran is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2007). Preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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 C.F.R. § 3.306 (2007). 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. Service connection for some disorders, including sensorineural hearing loss, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1137 (2007); 38 C.F.R. § 3.307, 3.309 (2007). 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. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). 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 (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. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; when the thresholds for at least three of these frequencies are 26 decibels; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). The veteran claims that his currently diagnosed bilateral hearing loss was caused by noise exposure that he incurred in service, or in the alternative, that his in-service noise exposure aggravated his preexisting hearing loss. Parenthetically, the Board notes that in its March 2004 rating decision, the RO found that the veteran had hearing loss that preexisted service, but was not shown to be aggravated beyond its natural progression during service. The veteran contends, in written statements and in testimony before the RO, that he incurred acoustic trauma during service while fueling helicopters and driving a petroleum, oil, and fuel truck. The veteran acknowledges that he was provided with hearing protection, but alleges that such protection was insufficient to block out all the noise he encountered. In support of his claim, the veteran has submitted statements from his sister and brother, in which both siblings maintain that they noticed the veteran's hearing problems shortly after he returned home from service. The veteran's service medical records show that on examination in August 1973 prior to his entry into active service, he was given an audiogram, the results of which, in pure tone thresholds, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 -- 35 LEFT 15 20 20 -- 40 These results reflect high frequency hearing loss in the left ear that meets VA criteria for a disability. 38 C.F.R. § 3.385 (2007). Since left ear hearing loss was noted on examination prior to the veteran's entry into service, the presumption of soundness does not apply. Therefore, high frequency hearing loss in the left ear existed prior to service. 38 U.S.C.A. §§ 1110, 1111; 38 C.F.R. §§ 3.6, 3.304(b). Conversely, while the results of the veteran's August 1973 audiogram indicate some high frequency hearing loss in the right ear, they are insufficient to constitute a disability by VA standards. 38 C.F.R. § 3.385 (2007). Since right ear hearing loss was not noted on examination prior to the veteran's entry into service, the presumption of soundness applies with respect to that ear. 38 C.F.R. § 3.304(b) (2007). The veteran's service personnel records show that the he served as a petroleum storage specialist stationed at Fort Benning, Georgia. The veteran now claims that he was routinely exposed to acoustic trauma in the course of his military duties. He also maintains that on one occasion during service, he reported to sick call because of hearing problems and was diagnosed with hearing loss. However, that contention is not supported by the veteran's service medical records. Those records show that in January 1975, the veteran was treated for complaints of an ear ache and accompanying sore throat. There is no indication, however, of any other complaints, treatment, or diagnoses of ear problems during service. Nor did the veteran complain of hearing trouble on examination prior to his separation from service in August 1976. Audiological evaluation on separation showed high-frequency hearing levels that were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 -- 10 LEFT 15 10 10 -- 10 While the results indicate some high frequency hearing loss, they are insufficient to constitute a disability by VA standards with respect to either the veteran's left or right ear. 38 C.F.R. § 3.385. Given that the service medical records reflect improvement, rather than worsening, of hearing in the veteran's left ear over the course of his active service, his left ear hearing loss can not be considered to have been aggravated by service. 38 C.F.R. § 3.306. Therefore, the Board finds that service connection on the basis of aggravation is not warranted because the evidence does not show any increase in the veteran's preexisting left ear hearing loss during service. Since a claim for aggravation is improper under the facts of this case, the veteran's appeal must be analyzed as a claim for direct service connection with respect to his right ear hearing loss. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). The veteran now asserts that he has had hearing problems ever since leaving service. Nevertheless, he concedes that he did not report any hearing problems to VA for many years. The first post-service evidence of hearing loss of record is dated in October 2003, more than 27 years after the veteran left service. At that time, the veteran was treated for complaints of hearing difficulties at a VA Medical Center. He was examined and fitted for hearing aids in both ears. The impression was sloping normal to moderately severe bilateral sensorineural hearing loss. It was noted at the time that the veteran had been exposed to helicopter noises during his three years in the military. It was also noted, however, that the veteran had incurred loud noise exposure during his approximately 18 months of post-service employment as a railroad track worker. In January 2004, the veteran underwent a VA audiological examination. He reported decreased hearing bilaterally with intermittent tinnitus, as well as some recent aural fullness in his right ear. In terms of prior noise exposure, the veteran stated that he had been subject to acoustic trauma during his three years of service as a helicopter refueler and his year and a half of employment as a railroad track worker. An audiological evaluation was conducted, the results of which, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 55 50 55 LEFT 30 45 60 50 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 in the left ear. Additionally, the veteran was given an otoscopic examination, which revealed no abnormalities. He also underwent immittance testing, which showed normal tympanic mobility bilaterally. His acoustic reflex thresholds were consistent with pure tones. Based upon her examination of the veteran and a review of his claims folder, the VA audiologist found that while the veteran's hearing levels fit a diagnosis for bilateral sensorineural hearing loss, his condition did not require further medical treatment at that time. Additionally, the VA audiologist opined that in view of the veteran's documented normal hearing on separation from service, it was less likely than not that his current bilateral hearing loss was related to his period of active duty. In June 2005, the veteran's claims file, including the results of his January 2004 examination, his May 2005 hearing testimony before the RO, and the statements from his siblings, were submitted for additional review by a VA examiner. In a separate June 2005 opinion, the examiner again found that there was no relationship between the veteran's current bilateral hearing loss and the noise exposure that he claimed to have experienced during active service. The record thereafter shows that the veteran has continued to receive treatment for hearing problems. In December 2007, he was treated at the VA Medical Center for complaints of worsening hearing in both ears. Audiometric evaluation revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 65 70 75 LEFT 40 50 60 70 75 Speech audiometry indicated speech recognition ability of 80 percent in the right ear and of 72 percent in the left ear. The assessment was mild sloping to severe bilateral sensorineural hearing loss. The veteran was fitted with new hearing aids in both ears. Additionally, the VA audiologist noted that without the use of hearing aids, the veteran would likely experience communication difficulties in all listening environments. Significantly, however, the audiologist did not offer an opinion as to whether the veteran's bilateral hearing loss had been caused or aggravated by his military service. Given the length of time between the veteran's separation from service and the initial record of diagnosis and treatment for right ear hearing loss, the veteran is not entitled to service connection for that disorder on a presumptive basis. Additionally, in view of the lengthy period without evidence of treatment, there is no evidence of a continuity of treatment, which weighs heavily against his claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997). Here, there is no evidence establishing any nexus between military service and the veteran's hearing loss. In separate opinions dated in January 2004 and June 2005, the VA audiologist who examined the veteran and reviewed his claims file expressly found that his current bilateral hearing loss was not related to his period of active service. Given that there is no competent contrary opinion of record, the Board finds that service connection is not warranted. In this regard, the Board finds it unnecessary to schedule the veteran for an additional VA audiological examination because there is no evidence of record that indicates that the veteran's current hearing loss is associated with an event, injury, or disease in service, or with any service-connected disability. 38 C.F.R. § 3.159(c)(4) (2007). The Board is sympathetic to the veteran's claims, and those of his siblings, that his bilateral hearing loss is related to his military service. However, as lay persons, they are not competent to give a medical opinion, diagnosis, or etiology of a disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, while the veteran can describe symptoms that he experiences, he lacks the medical competence to render a diagnosis of hearing based on these symptoms, or to relate them to a particular circumstance, such as any in- service noise exposure. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (layperson is generally not capable of opining on matters requiring medical knowledge). In sum, the Board finds that the weight of the credible evidence demonstrates that the veteran had preexisting hearing loss in his left ear that was not aggravated during service, and that the veteran's current bilateral hearing loss is not related to his active service or to any incident therein. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in December 2003, a rating decision in March 2004, a statement of the case in September 2004, and a supplemental statement of the case in August 2005. Those documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the May 2006 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for bilateral hearing loss is denied. _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs