Citation Nr: 0812334 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 02-16 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for depression, to include as secondary to hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran, his spouse and his daughter ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from September 1954 to September 1956. This appeal to the Board of Veterans' Appeals (Board) is from a March 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In May 2005, to support his claims, the veteran, his spouse and his daughter testified at a hearing at the RO before a Veterans Law Judge of the Board (also known as a travel Board hearing). In January 2008, the Board informed the veteran that the Veterans Law Judge who had conducted that hearing had since retired. So the veteran was asked whether he wanted another hearing before a Veterans Law Judge that will ultimately decide this appeal. See 38 C.F.R. § 20.707. The veteran responded in February 2008 that he did not want another hearing. In September 2005 and November 2006, the Board remanded this case for additional development and consideration. Those remands were by way of the Appeals Management Center (AMC). In the latest appellant's brief, the veteran appears to have raised the additional issue of his entitlement to service connection for tinnitus. But since this additional claim has not been adjudicated by the RO, much less denied and timely appealed to the Board, it is referred to the RO for appropriate development and consideration. The Board does not currently have jurisdiction to consider it. See 38 C.F.R. § 20.200 (2007). FINDINGS OF FACT 1. During his April 2005 travel Board hearing, the veteran acknowledged that he had no complaints of or treatment for bilateral hearing loss during service or even during the first several years after his service ended in September 1956. The available records show he did not actually first seek treatment for this condition until January 1973. 2. At a rather recent VA examination in July 2007, on remand, the examiner indicated that without a review of the veteran's military service audiograms or at least an audiogram completed within one year of his discharge from service in conjunction with his report of post-military noise exposure, an opinion regarding the etiology of his bilateral hearing loss could not be made without resorting to speculation. 3. The veteran did not have depression during service, and there is no competent medical evidence otherwise suggesting this condition is due to his military service, including as either caused or permanently worsened by a service-connected disability (keeping in mind his hearing loss has not been linked to his military service). His depression did not initially manifest until many years after service and is at least partially due to his social isolation. CONCLUSIONS OF LAW 1. The veteran's bilateral sensorineural hearing loss was not incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. The veteran's depression was not incurred in or aggravated by his military service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters from the RO and AMC in March 2004, May 2004, September 2005 and November 2006 (1) informed the veteran of the information and evidence not of record that is necessary to substantiate his claims; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claims, or something to the effect that he should "give us everything you've got pertaining to your claims." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The AMC complied with the requirements in Dingess, post remand, when it sent a VCAA notice letter in November 2006 discussing the downstream disability rating and effective date elements of the claims and then went back and readjudicated the claims in the September 2007 supplemental statement of the case (SSOC). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claims; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to obtain all available evidence concerning the claims under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO and AMC obtained all available medical records identified by the veteran and his representative. In this regard, all but one of his outpatient treatment records from the VA Medical Center (VAMC), Martinez, from 1973 is missing because this facility was closed after an earthquake. In addition, the National Personnel Records Center (NPRC), a military records repository, has indicated the veteran's service medical records (SMRs) were destroyed in a 1973 fire. When a veteran's SMRs are unavailable, through no fault of his, the VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). This, however, does not lower the threshold for an allowance of a claim, for example, where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the RO's and AMC's attempts to reconstruct the veteran's SMRs from other sources, including sick and morning reports, were unsuccessful. Nevertheless, VA furnished him a compensation examination to try and get an opinion concerning the etiology of his bilateral hearing loss. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). VA has a duty to provide a medical examination and/or seek a medical opinion when such examination or opinion is necessary to make a decision on the claim. VA considers an examination or opinion necessary to make a decision on the claim if the evidence of record (1) contains competent evidence that the claimant has a disability, or persistent recurring symptoms of disability; (2) indicates the disability or symptoms may be associated with his military service; and (3) contains insufficient medical evidence for VA to make a decision on the claim. See again McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Indeed, the Board's remand in November 2006 noted that a VA compensation examination for an opinion to determine the etiology of the veteran's depression would be necessary only if it was first determined that his bilateral hearing loss was related to his military service, i.e., service connected, because he is claiming that his hearing loss precipitated his depression. And as will be explained, in the absence of establishing the required relationship between his hearing loss and his military service, it logically follows that his depression also cannot be linked to his military service by way of the hearing loss. And there is no evidence on file suggesting his depression is otherwise related to his military service, except for his unsubstantiated lay allegations, which are insufficient to trigger VA's duty to provide an examination. VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of lay statements. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). In sum, the record reflects that the facts pertinent to the claims have been developed to the extent possible and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed, and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim[s]." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claim. II. Whether the Veteran is Entitled to Service Connection for Bilateral Hearing Loss The veteran claims that his bilateral hearing loss is from excessive noise exposure during his military service. During his travel Board hearing in May 2005, he contended that he sustained acoustic trauma during service from driving a truck and from weapons fire. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Organic diseases of the nervous system, such as sensorineural hearing loss, may be presumed to have been incurred in service if manifested to a compensable degree (of at least 10 percent) within one year of separation from active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA considers hearing loss 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 threshold for at least three of these frequencies 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 though disabling hearing loss may not be demonstrated at the time of separation from service, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). As already alluded to, the veteran had a VA audiology examination in July 2007, following two Board remands, to determine whether his bilateral hearing loss is attributable to his military service - and, in particular, to the type acoustic trauma he has alleged. He continued to claim that as the cause of his hearing loss. He noted noise exposure from rifles and truck driving (21/2 ton trucks). He said that did not have any ear protection during service. He reported having difficulty hearing people and understanding speech in most listening situations. He also reported post-military occupational noise exposure as a civilian, from working as a painter - mainly sandblasting, but he said he wore ear protection in that job. He also reported experiencing bilateral tinnitus (ringing in his ears) for many years. The audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 80 85 95 100 LEFT 60 75 90 85 85 Speech audiometry revealed speech recognition ability of 74 percent in his right ear and 72 percent in his left ear. The examiner diagnosed bilateral moderately severe to profound sensorineural hearing loss from 500-8000 Hertz. He noted there were no military audiograms to review and that the first evidence of hearing loss was not found until a June 1979 audiogram, several years after the veteran's military service ended. [Note: Another search for records from the VAMC Martinez found a report from a few years earlier, in January 1973, indicating a diagnosis of conductive and perceptive deafness.] In any event, during his April 2005 travel Board hearing, the veteran acknowledged that he had no complaints of or treatment for bilateral hearing loss during service or even during the first several years after his service ended in September 1956. So the fact that his service medical records are unavailable, presumably having been destroyed in the 1973 fire at the NPRC, has far less significance in this circumstance because, even if available, these records - even by the veteran's own admission, would not show any relevant complaints of diminished hearing or a diagnosis of hearing loss while he was in service or even for the several immediately ensuing years. The results of the July 2007 VA audiological evaluation confirm the veteran has sufficient bilateral hearing loss to be considered an actual disability by VA standards. See 38 C.F.R. § 3.385. The determinative issue, then, is whether this condition has been attributed by competent evidence to his military service - and, in particular, to acoustic trauma from excessive noise exposure. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In making this dispositive determination, it is VA's defined and consistently applied policy 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 it is meant that an approximate balance of positive and negative evidence exists 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 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The only evidence suggesting an etiological link between the veteran's military service (and any noise exposure he may have had in that capacity) and his current bilateral hearing loss are his, his friend's, and his daughter's unsubstantiated lay allegations. His daughter noted he had hearing loss as early as 1968 and his friend indicated he recalled this problem back in 1960. But these lay statements do not show this claimed condition existed when the veteran was in service or even within the one-year presumptive period after his discharge in September 1956. And it is equally worth reiterating that, during his May 2005 travel Board hearing, the veteran acknowledged that he had no complaints of or treatment for hearing loss in service or even within the first few years after his service ended. Furthermore, he indicated that he did not seek treatment for this condition until January 1973. He also noted in an October 2001 VA outpatient report that his hearing loss began about 30 years earlier - which, if true, means in 1971 or thereabouts. Moreover, a private record in October 1981 also shows the first instance of treatment for bilateral hearing loss some 10 years earlier, so meaning in about 1971. And while the veteran, his spouse, daughter, and friend are competent to report he had what he believes was excessive noise exposure during his military service, and perhaps experienced diminished hearing during the years following his discharge, they are not competent to etiologically link his current bilateral hearing loss to that noise exposure, especially given the July 2007 medical opinion obtained on remand indicating that an etiological link concerning this would be mere speculation. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The July 2007 VA audiology examiner was simply unable, without purely speculating, to give comment on whether the veteran's current bilateral sensorineural hearing loss is attributable to his military service. And the Court has held that statements like this from doctors that are, for all intents and purposes, inconclusive as to the origin of a disease cannot be employed as suggestive of a linkage between the current disorder and the claimed incident of military service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). Because of the lack of any probative evidence establishing bilateral hearing loss during service or within the one-year presumptive period following service, the veteran's, his spouse's, his daughter's, and his friend's attribution of his hearing loss to factors related to his military service is not credible testimony. None of his VA records contains a medical opinion suggesting a correlation between his bilateral hearing loss and any event - noise exposure included, coincident with his military service. This several-year lapse between his separation from active duty and the first treatment for bilateral hearing loss provides highly probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Also, since there is no indication of sensorineural hearing loss within the one-year presumptive period after the veteran's service ended in September 1956, he is not entitled to application of the special presumptive provisions that might otherwise warrant granting his claim for service connection. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In the absence of competent medical evidence of a nexus between the veteran's current bilateral hearing loss and service, VA must deny the claim for this condition because the preponderance of the evidence is unfavorable, in turn meaning there is no reasonable doubt to resolve in his favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Whether the Veteran is Entitled to Service Connection for Depression, to Include as Secondary to his Bilateral Hearing Loss The veteran claims that his depression is directly attributable to his military service or, on an alternative theory of secondary service connection, was either caused or aggravated by his bilateral hearing loss. The statutes and regulations governing claims for service connection on direct and presumptive bases are the same as those indicated when previously adjudicating the claim for hearing loss. See again 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. In addition, a disability that is proximately due to or results from another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a). Also, when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, he shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As earlier acknowledged, the veteran's service medical records (SMRs) are missing. And, unfortunately, the NPRC has indicated these records were likely destroyed in a 1973 fire at that repository. So VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Again, though, this unfortunate circumstance does not lower the threshold for an allowance of a claim, for example, where the evidence almost but not quite reaches the positive- negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). In January 2001, a VA social worker indicated the veteran experiences depression, but that it is partly due to his social isolation. A VA outpatient report from June 2005 indicates he denied any depression, but admitted to some frustration over dealing with his hearing problems. An August 2006 psychological consultation resulted in a diagnosis of dysthymia (depression), and more recent VA outpatient records confirm this diagnosis. Since the veteran has a confirmed diagnosis, the determinative issue is whether his depression is somehow attributable to his military service, including by way of his claimed service-connected bilateral hearing loss. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). As noted in his March 2008 appellant's brief, the veteran does not claim that his depression is directly attributable to his military service. But even assuming he was making this claim, there is no competent medical evidence suggesting he had depression during service and no physician or other competent clinician has linked this condition to his military service. Indeed, his earliest potential diagnosis of depression was in January 2003, many years after his service had ended. This several decades' lapse between his separation from active duty and the first diagnosis of depression provides highly probative evidence against concluding his depression is directly related to his military service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The veteran, however, still may establish his entitlement to service connection for depression if there is competent medical evidence otherwise linking this condition to his military service, including by way of any service-connected condition. See 38 C.F.R. §§ 3.310(a) and (b), 3.303(d); Hickson v. West, 12 Vet. App. 247, 253 (1999) (medical nexus requirement for service connection consists of a link between current disability and an identifiable in-service disease or injury). Since, however, the Board already has determined the veteran's bilateral sensorineural hearing loss is unrelated to his military service, his derivative claim for service connection for depression as secondary to the bilateral hearing loss also must be denied because the condition claimed to have precipitated his depression has not been etiologically linked to his military service. For these reasons and bases, the preponderance of the evidence is unfavorable, in turn meaning the benefit-of-the- doubt doctrine does not apply and the claim must be denied. 38 C.F.R. § 3.102. ORDER The appeal is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs