Citation Nr: 0812126 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-00 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from October 1966 to September 1968. The veteran also served in the Army National Guard from November 1970 to November 1973 and from January 1979 to January 1982. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied entitlement to service connection for bilateral hearing loss and tinnitus. The RO awarded service connection for tinnitus in an October 2006 rating decision. As such, the matter is no longer in appellate status. The veteran presented testimony before the Board in August 2007. The transcript of that hearing has been associated with the claims folder. FINDINGS OF FACT 1. The veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. The currently demonstrated bilateral hearing loss is not shown to be due any event or incident of the veteran's active service or any period of active duty or inactive duty for training, nor is it shown to have manifested within the year following separation from active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 101(2), (22), (24), 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in a November 2005 letter, issued prior to the decision on appeal, the RO provided notice to the veteran regarding what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in his possession that pertained to the claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's active duty and reserve service medical and personnel records, post-service private treatment records, VA examination reports, an article concerning Operation Allen Brook, and declassified military reports. A request for Army National Guard records from the National Personnel Records Center (NPRC) resulted in a negative response in June 2006. Medical and personnel records were received from the Military Bureau of the Army National Guard in Augusta, Maine, in May 2006. There is no indication that there are any outstanding Reserve records. Any further efforts to obtain any additional Reserve records would be futile. 38 C.F.R. § 3.159(c)(2). As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes: his multiple contentions; the veteran's active duty and reserve service medical and personnel records; post-service private treatment records; VA examination reports; an article concerning Operation Allen Brook; and declassified military reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran contends that he is entitled to service connection for bilateral hearing loss. Specifically, he contends that bilateral hearing loss is the result of acoustic trauma sustained during his Vietnam service from small arms fire and 500 pound bombs dropped by F-4 Phantoms during Operation Allen Brook. He alternatively contends that hearing loss is the result of noise exposure from 155 howitzers at annual training during his Reserve periods of service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of at least 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2007). Certain presumptions, such as the above-mentioned presumption relating to certain diseases and disabilities (38 U.S.C.A. § 1101, 1112; 38 C.F.R. § 3.307, 3.309), the presumption of soundness (38 U.S.C.A. § 1111; 38 C.F.R. § 3.304) and the presumption of aggravation (38 U.S.C.A. § 1153; 38 C.F.R. § 3.306), apply only to periods of active military service. See Paulson v. Brown, 7 Vet. App. 466, 470. Thus, the definitional statute, 38 U.S.C.A. § 101(22), (24) makes a clear distinction between those who have served on active duty and those who have served on active duty or inactive duty for training. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Pursuant to 38 C.F.R. § 3.385, 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 at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. At the outset, the Board notes the veteran had active military service from October 1966 to September 1968. Thus, the Board shall first address whether bilateral hearing loss is related to the veteran's active military service. After careful consideration of all procurable and assembled data, while the Board does not dispute the veteran's participation in Operation Allen Brook (which was confirmed by service personnel records), or exposure to small arms fire while performing duties as a rifleman, the Board finds that service connection for bilateral hearing loss is not warranted. In this regard, the veteran's service medical records are devoid of complaints, treatment or diagnoses of bilateral hearing loss. Upon enlistment examination in July 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -5 (5) -5(5) -10 (-5) LEFT -5 (10) -5 (5) -5 (5) -10(0) -10 (-5) (Prior to November 1967, the service department reported audiometric test results under American Standard Associates (ASA) values. The Department of Defense adopted the International Standards Organization (ISO) values in November 1967. In July 1966, the VA adopted the ISO standard, which is the standard applied in 38 C.F.R. § 3.385. The figures in parentheses represent the conversion from the ASA to the ISO values.) During medical examination in October 1967, the veteran received a 15/15 on the whispered and spoken voice tests. Upon separation examination in August 1968, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 5 10 LEFT 5 5 5 10 10 The Board would note at this juncture that the basis for the veteran's argument that he sustained acoustic trauma during active duty service was the "significant shift" in hearing thresholds from 1966 to 1968. He contends the audiological evaluations are objective evidence of the onset of bilateral hearing loss during service. It is clear, however, that when the audiometric evaluations are converted as shown above, the shift was only minimal and/or showed improvement in some frequencies. There are no records from the veteran's Reserve period of service from November 1970 to November 1973. Records from the Reserve period of service from January 1979 to January 1982, reveal the veteran had high frequency left ear hearing loss upon enlistment examination in January 1979. This is outside the one year presumptive period following discharge from active duty service for sensorineural hearing loss. 38 C.F.R. §§ 3.307, 3.309. Specifically, the January 1979 report of medical history from the veteran's Reserve period of service revealed he denied ear trouble and hearing loss. The corresponding medical examination contained, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 5 5 LEFT 25 10 5 5 45 An April 1979 audiological evaluation contained the exact findings as January 1979. No additional records are available. Post-service, the veteran was first diagnosed with bilateral hearing loss in May 1998, which is also outside the one year presumptive period for sensorineural hearing loss. 38 C.F.R. §§ 3.307, 3.309. Despite evidence of left ear hearing loss in 1979 and bilateral hearing loss as of 1998, there is no evidence of record to substantiate the critical second and third components of the Hickson inquiry, as enumerated above. In a December 1998 audiological evaluation, the veteran presented with a gradual loss of hearing that had been noted only over the past several years, though the veteran indicated that it began while it began in the military. On VA examination in January 2006, it was noted that the veteran claimed that he first began noticing hearing loss in the late 1960's. On review of the records from that period, however, the January 2006 examiner noted that the July 1966 and August 1968 audiological evaluations showed hearing sensitivity within normal limits bilaterally. Post-service, the veteran reported that he worked in the woods with ear protection for approximately two years. The veteran also stated that he hunted without hearing protection, and that he used a chain saw and did carpentry with hearing protection. The examiner noted the veteran was exposed to howitzers while wearing hearing protection during his Reserve service. The VA examiner provided his medical opinion that the veteran's bilateral hearing loss was less likely as not related to military service "but more likely related to post service noise exposure, as well as aging effects." See January 2006 VA examination report. Upon VA examination in September 2006, bilateral hearing loss was again opined to be less likely than not related to military noise exposure. The examiner gave the following opinion: Given [the veteran's] hearing sensitivity is documented as within normal limits from the time of enlistment to time of separation it is less likely than not that his current hearing loss is related to his military noise exposure as noise induced hearing loss typically does not present with a delayed onset. In an October 2006 addendum opinion, the examiner noted the veteran had mild to moderate hearing loss from 4000 Hertz to 6000 Hertz upon examination in January 1979 for his second enlistment into the Army National Guard. The examiner indicated that while the veteran had documented noise exposure to cannon fire as a cannon operator and cannon fire direction specialist during his National Guard tours, the documented hearing loss in the left ear only was not consistent with that type of noise induced hearing loss as exposure to high decibel levels associated with cannon fire would certainly have affected both ears. The October 2006 examiner also indicated that asymmetric hearing loss with a left ear deficit was consistent with right handed shooting of a fire arm. The examiner noted the September 2006 report of post-service recreational hunting, which the examiner opined was consistent with a left ear deficit in hearing. The examiner stated that there was no clinical evidence to suggest that the veteran's hearing loss had it's onset during National Guard service as the left ear hearing loss was a pre-existing condition. Finally, the examiner concluded with the following statement: Thus, my original opinion upon C&P examination performed 9/27/06 continues to stand and it is less likely than not given the aforementioned evidence that the veteran's current hearing loss is related to his military noise exposure based on normal hearing sensitivity from enlistment to separation of active duty and lack of sufficient evidence in his SMRs (service medical records) during his National Guard duty. In multiple statements, as well as those made to the undersigned during the August 2007 Board hearing, the veteran contends that his post-service occupational and recreational noise exposure was incorrectly stated by the January, September, and October 2006 VA examiners. As a result of these sort of contentions, the RO sought an addendum opinion in February 2007. The RO noted the veteran asserted the following: he was exposed to weapons fire as an infantry squad leader in Vietnam; he was exposed to noise from 500 pound bombs during combat in Vietnam; he had significant hearing loss from 1966 to 1968; although he worked in the woods for a period of time after service, his chain saw exposure was limited; his 1979 left ear hearing loss was documented prior to his working in the woods in logging in 1980; he was a full time student from 1970 to 1973 and worked only part-time as a ranger and surveyor; he has used less than one box of shells total while hunting; and during his National Guard service he was located close to firing batteries (within 50 yards) without hearing protection. The examiner reviewed the addendum opinion request, which contained the aforementioned information. In February 2007, the VA examiner indicated that she reviewed the service records for a third time. She stated that her medical opinion, that the veteran's current hearing loss was less likely than not due to noise exposure in service, remained the same. The VA examiner reasoned that the veteran's hearing loss or sensitivity upon discharge from service in 1968 was below the normal range of hearing sensitivity for a normal functioning adult, i.e. 25 decibels or lower. The examiner stated that she did not agree that the veteran sustained any loss of auditory acuity as result of noise exposure during service. This is very strong medical evidence standing against the veteran's claim. She further reasoned that if ongoing noise exposure was eliminated, then hearing loss due to previous noise exposure would not progress. The examiner indicated that hearing may worsen, but if so it would be due to such other causes like aging. She reiterated the conclusion that normal hearing sensitivity upon discharge was considered evidence that the veteran's current hearing loss was not related to noise exposure during his active duty. Furthermore, responding to the veteran's claim that his "decreased hearing threshold levels" across all frequency ranges showed a noise-induced hearing loss, the examiner indicated that noise-induced hearing loss did not present in a flat configuration. She explained that noise-induced hearing loss most typically presents with a notched loss at the 4000 frequency range. The veteran's hearing sensitivity upon discharge from the Marine Corps did not have a configuration that was consistent with textbook noise-induced hearing loss and was, in fact, normal. The examiner also noted that while the veteran contended that the noise from the limited chain saw work and use of less than one box of shells total while hunting was not relevant and not comparable to his noise exposure during service, the fact remained that the veteran's hearing upon discharge from active service was normal. For that reason, she found that his recreational and occupational noise exposure since service must be taken into consideration when opining in regard to his claim for service connection. Finally, the examiner commented on the fact that on his examination for enlistment in the National Guard in 1979, the veteran had moderate left ear hearing loss at 4000 hertz and normal hearing sensitivity in his right ear. She stated that this hearing loss was not consistent with exposure to noise through the veteran's duties as fire direction specialist in the artillery. Moreover, she indicated that such noise exposure to both ears would typically result in a noise-notch at the 4000 hertz frequency bilaterally and not an asymmetric hearing loss. Based on the aforementioned, the Board finds that left ear hearing loss at 4000 Hertz pre-existed the veteran's second period of National Guard service. As noted at the outset, the presumption of soundness (38 U.S.C.A. § 1111; 38 C.F.R. § 3.304) and the presumption of aggravation (38 U.S.C.A. § 1153; 38 C.F.R. § 3.306), apply only to periods of active military service. See Paulson, 7 Vet. App. at 470. Thus, the veteran was not presumed sound upon his enlistment in 1979. There were no medical records showing a worsening of hearing sensitivity. As such, aggravation may not be conceded, especially in the light of the October 2006 VA opinion that left ear hearing loss pre-existed the veteran's National Guard service and there was a lack of sufficient evidence in his service medical records during his National Guard duty to show aggravation. 38 C.F.R. § 3.306. Further, as delineated above, there is no evidence to support a finding that left ear hearing loss is related to any prior claimed acoustic trauma during active service. 38 C.F.R. § 3.303. Finally, the currently demonstrated bilateral hearing loss has repeatedly been found by multiple examiners not to be related to the veteran's active military service. Id. While the veteran contends that bilateral hearing loss is due to some aspect of his period of active military service and/or Reserve service, his statements do not constitute competent evidence of a medical nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs