Citation Nr: 0813223 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-24 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from December 1968 to January 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. The veteran has a current left ear hearing disability. 2. The competent medical evidence of record does not show that a left ear hearing disability was identified during service or that the sensorineural component of the currently diagnosed left ear hearing loss manifested to a compensable degree within the one-year presumptive period following the veteran's discharge from service and there is no competent medical evidence of record that otherwise links the veteran's left ear hearing loss to his service. CONCLUSION OF LAW A left ear hearing loss disorder was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A January 2005 VCAA letter informed the appellant of what evidence was required to substantiate his claims for service connection for hearing loss disability. This letter also informed him of his and VA's respective duties for obtaining evidence. The VCAA letter requested the veteran to provide any evidence in his possession and he was informed that it was ultimately his responsibility to ensure that VA received any evidence not in the possession of the Federal government. A letter dated in March 2006 provided the veteran with notice of the rating criteria and effective date provisions pertinent to the veteran's claim prior to adjudication of that claim. Therefore, the Board finds that the requirements of VCAA regarding the duty to notify have been met and that VA has no further duty prior to Board adjudication. With regard to the duty to assist, the claims file contains service medical records and three VA examination reports. Additionally, the claims file contains the veteran's statements in support of his claim. The Board has carefully reviewed such statements and has determined that he has not identified further available evidence not already of record. Furthermore, there is no other indication in the file that there are additional relevant records that have not been obtained. Based on the foregoing, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. II. Merits of the Claim for Service Connection Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (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 Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995)). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110 and 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). A pre-existing injury or disease will be considered to have been aggravated by active 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.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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 C.F.R. § 3.306(b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The veteran claims that his previous military service caused him to incur bilateral hearing loss and tinnitus. He asserted that he was exposed to loud noise from aircrafts landing and taking off during his military service. The RO granted the veteran service connection for right ear hearing loss and tinnitus in an April 2006 rating decision. However, the RO denied service connection disability for left ear hearing loss. The veteran appeals this decision. In assessing the veteran's service connection claim for hearing loss, the Board must first determine whether the veteran has a hearing disability under VA regulations. Hearing disabilities are determined for VA purposes using criteria provided under 38 C.F.R. § 3.385. There under, a hearing disability will be determined where any of the following threshold measures has been found: where the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory threshold for at least three of the frequencies is 26 decibels or greater; or where speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Board finds that the veteran has current hearing loss in the left ear. A March 2006 VA audiology examination report showed auditory thresholds 40 decibels (dB) or higher at 2000, 3000, and 4000 Hertz (Hz) in the left ear. This examination report also showed a speech recognition score less than 94 percent in the left ear at 92 percent. 38 C.F.R. § 3.385. The VA examiner noted that the veteran had sensorineural hearing loss in his left hear, moderately severe to profound with gradually sloping configuration. As such, the evidence shows that the veteran has a current left ear hearing loss disability. Pond, 12 Vet. App. at 346. In his formal claim dated in August 2005, the veteran indicated that he was exposed to loud noise during his time in service. Three VA examination reports dated in January 2006 and March 2006 show that the veteran reported a history of noise exposure related to his service as an aircraft mechanic. The veteran's DD Form 214 confirms that the veteran served as an aircraft mechanic. It is likely that the veteran was exposed to loud noises from aircraft; as such noise exposure is consistent with the conditions of his active military service. The veteran contends that he had hearing loss in his left ear prior to service and that his hearing loss was aggravated in service. See May 2006 notice of disagreement. Audiometric testing measures threshold hearing levels in decibels (dB) over a range of frequencies in Hertz (Hz). The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). However, hearing loss does not constitute a disability for VA purposes when the threshold levels at 500, 1000, 2000, 3000, and 4000 Hz are all less than 40 dB and at least three are 25 dB or less. See 38 C.F.R. § 3.385. The entrance examination noted that the veteran's ears were normal and his hearing and ears were given a numeral designation of "1" under PULHES, which indicates that the veteran's ears were at a high level of fitness and the veteran was medically fit for any military assignment. The veteran's entrance examination noted that it used the American Standards Association (ASA) units. Therefore, to compare the threshold hearing levels to later examinations, the ASA units must be converted to the International Standard Organization (ISO) units. The original ASA units will be shown in parenthesis. The veteran's entrance examination shows the following threshold hearing levels for the left ear as converted from ASA units to ISO units: 20 dB (5 dB) at 500 Hz, 10 dB (0 dB) at 1000 Hz, 20 dB (10 dB) at 2000 Hz, 15 dB (5 dB) at 3000 Hz, and 35 dB (30 dB) at 4000 Hz. In four out of the five frequencies the veteran's hearing is considered normal as the hearing threshold is 20 dB or below. The entrance examination shows some hearing loss in the veteran's left ear at 4000 Hz. As the entrance examination does not show that the veteran has hearing loss in his left ear at 40 dB or higher at the required frequencies under VA regulations or that his auditory threshold for at least three of the frequencies was 26 decibels or greater, the evidence indicates the veteran did not have a hearing loss disability prior to his military service. See Hensley, 5 Vet. App. at 157. Therefore, the veteran's hearing is presumed to be sound upon entry into service. The evidence of record indicates that the veteran's hearing loss was not aggravated by military service and it did not meet the criteria under VA laws and regulations for a hearing disability in service or within the one-year presumptive period following his discharge. The service medical records are absent of complaints of hearing loss or treatment for hearing impairment in service or within one year after military service. At his August 1973 separation examination, the veteran's hearing levels for the left ear were measured on audiometric testing as follows: 15 dB at 500 Hz, 15 dB at 1000 Hz, 15 dB at 2000 Hz, 15 dB at 3000 Hz, and 30 dB at 4000 Hz. The separation examination noted that the veteran had bilateral high frequency hearing loss and recommended hearing conservation. In comparing the entrance and separation examinations, there is no evidence of an overall worsening of the veteran's hearing in his left ear. The veteran's hearing in the left ear decreased by 5 dB at 1000 Hz; however, at the other recorded frequencies the veteran's hearing either stayed the same or improved slightly from the time of entrance into service. Moreover, the evidence does not show that the veteran had a hearing loss disability in the left ear at discharge from service as the separation examination does not show that the veteran had hearing loss in his left ear at 40 dB or higher at the required frequencies or that that his auditory threshold for at least three of the frequencies were 26 decibels or greater. The first medical evidence that shows a hearing disability under VA laws and regulations was in January 2006, approximately 33 years after the veteran was discharged from service. Because the veteran's hearing loss did not worsen during service and the separation examination showed that the veteran did not have a hearing loss disability in his left ear, the Board finds that the veteran's hearing loss was not aggravated by service. Hensley, 5 Vet. App. at 164. As there is no evidence of a hearing loss disability in the veteran's left ear as defined by VA regulation shown in service or manifested to a degree of 10 percent or more within the one year presumptive period from service discharge, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the veteran's current hearing loss and his active service, to include any noise exposure in service. The Board notes that there is no competent medical opinion linking the veteran's hearing impairment to his period of active military service. In fact, the record contains a medical opinion opposing the veteran's claim. A January 2006 VA audiological examination noted that the veteran's tinnitus had the same causative factor as the hearing loss since both appear to have an onset during military service. However, this examination and opinion does not reflect competent medical evidence as the VA examiner certified that the combined use of the puretone audiometrix average and the speech discrimination was inappropriate for evaluation and the veteran should return for further audiological evaluation. The veteran underwent a VA examination for ear disease in March 2006 and that examiner determined that it was not likely that the conductive component of the veteran's hearing loss was related to military service because of the absence of any type of head trauma and barotrauma during the veteran's military service. In a separate March 2006 VA audiological examination, the examiner, which was the same examiner from the January 2006 VA examination, concluded that the veteran's hearing loss in his left ear was not related to his military service. The VA examiner based his decision on the claims file, service medical records, statements made by the veteran during the examination and an examination of the veteran. Therefore, the Board finds that the March 2006 VA examiner's examination and medical opinion are competent, credible and highly probative evidence. The veteran stated that his left ear hearing loss began in the military. Lay persons can provide an account of observable symptoms based on using the five senses, such as in this case the veteran's observation that he has difficulty hearing and when he first noticed having problems with his hearing. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, lay assertions regarding medical matters such as an opinion whether a disability is related to an injury or disease in service has no probative value because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 494-95. The veteran is not a licensed health care professional; therefore the lay evidence offered by the veteran is not competent medical evidence and does not prove a relationship between the veteran's hearing loss in his left ear and exposure to loud noise during military service. As stated above, the only competent medical evidence of record asserts that the veteran's left ear hearing loss is not related to his military service. Under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claim and that doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the veteran's claim for entitlement to service connection of a left ear hearing disability is not warranted. ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs