Citation Nr: 0813262 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-23 560 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. D. Watson, Associate Counsel INTRODUCTION The veteran served on active duty from April 1973 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 RO decision, which, in pertinent part, denied service connection for a bilateral hearing loss disability. In June 2007, the veteran testified at a Travel Board hearing before the undersigned. A transcript has been associated with the file. In October 2007, the Board remanded the veteran's claim for further development. It now returns for appellate consideration. FINDINGS OF FACT 1. On entrance examination, the veteran was noted to have hearing loss of the left ear, and there was no permanent aggravation of that disability during service. 2. The veteran currently has a right ear hearing loss disability; however, the preponderance of the evidence is against a causal link between the veteran's current right ear hearing loss and any incident in service. CONCLUSIONS OF LAW 1. A left ear hearing loss disability was not incurred in or aggravated by 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. §§ 1110, 1111, 1153 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2007). 2. A right ear hearing loss disability was not incurred in or aggravated by active 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. §§ 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 folder. 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 her 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 claims. 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 March 2005 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, and he was told the 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. Obtaining an additional examination or opinion is not needed because there is sufficient evidence to decide the claim. In this regard, it is noted that the Board remanded the veteran's claim in October 2007 so that an opinion could be obtained regarding the etiology of any current hearing loss. This medical opinion was obtained in December 2007. This opinion is thorough and will be discussed in detail, below. 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 veteran contends that he has a bilateral hearing loss disability that resulted from acoustic trauma, including exposure to tank and aircraft noise, during service. For the reasons that follow, the Board concludes that service connection is not warranted. a. Left Ear At the veteran's induction examination, conducted in April 1973, 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 LEFT 15 10 5 N/A 45 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). In this case, the veteran's induction examination shows that he had a left 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 left ear hearing loss disability on service entrance. Since a left ear hearing loss disability on induction, 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). In October 2007, the Board remanded the veteran's claim to obtain a VA examination and opinion. After a review of the claims folder, the December 2007 VA examiner found that the veteran had a high frequency hearing loss at 4000 Hz in the left ear upon entry examination in April 1973. The VA examiner concluded that the veteran's preexisting high frequency left ear hearing loss was less likely than not aggravated during active service beyond the natural progress of the condition. There is clear evidence of current hearing loss of the left ear, as evidenced by multiple VA audiological evaluations. 38 C.F.R. § 3.385. However, service medical records show that the veteran had a left ear hearing loss disability upon induction. Furthermore, the medical evidence shows that the veteran's left ear hearing impairment did not noticeably increase in severity during service and was not permanently aggravated thereby. Thus, despite the veteran's contentions, the preponderance of the evidence is against a finding that the veteran's left ear hearing loss disability was aggravated as the result of any in-service acoustic trauma. 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. b. Right Ear As mentioned above, at his April 1973 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 RIGHT 15 0 5 N/A 5 As the Board may not interpret graphical representations of audiometric data, the Board remanded the case in 2007 in order to obtain an interpretation of graphical audiograms which were conducted during the veteran's period of active duty. See Kelly v. Brown, 7 Vet. App. 471 (1995). According to the December 2007 VA examiner's interpretation of the audiograms, the veteran had right ear hearing which was within normal limits in February 1975 and in January 1976, a few months before service separation. The Board notes that there is no medical evidence of right ear hearing loss between the veteran's separation in April 1976 and the receipt of VA treatment reports in July 2005, showing a right ear hearing loss disability. 38 C.F.R. § 3.385. Despite the veteran's contentions, the preponderance of the evidence is against a finding that the veteran's right ear hearing loss disability is the result any in-service noise exposure. The evidence, including service medical records and a December 2007 VA audiological opinion, shows that the veteran had right ear hearing which was deemed within normal limits upon separation from service. Furthermore, the first medical evidence showing that the veteran had a right ear hearing loss disability for VA purposes is a VA treatment report from July 2005. 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). In addition the December 2007 VA examiner opined that the veteran's current right ear hearing loss disability was not attributable to service. It was pointed out that the veteran did not report experiencing hearing loss until the early to mid 1980s, the veteran had been exposed to acoustic trauma in the form of hunting with guns without hearing protection, and the veteran had medical conditions that likely had a negative impact on his hearing. Following a review of the claims folder, it was concluded that the veteran's right ear hearing loss was not attributable to service. 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. ORDER Service connection for a bilateral hearing loss disability is denied. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs