Citation Nr: 0814170 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-15 153 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from July 1954 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the RO in Huntington, West Virginia, on brokerage for the RO in Louisville, Kentucky, which denied service connection for a bilateral hearing loss disability. FINDINGS OF FACT 1. The veteran had bilateral hearing loss noted at entry to service. 2. The veteran's bilateral hearing loss disability was not aggravated by his inservice acoustic exposure. CONCLUSION OF LAW The veteran's bilateral hearing loss was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 his 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 claim. 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 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 January 2004 fully satisfied the duty to notify provisions for the first three elements. 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. An August 2006 letter told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-121. Although this letter was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice in August 2006, he responded that he had no further evidence in September 2006 and the claim was readjudicated and a supplemental statement of the case (SSOC) was provided to the veteran in March 2007. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). 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 date to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes, however, that the veteran was provided notice of evidence required for appropriate disability rating or effective date to be assigned in March 2006 and August 2006 letters. The Board finds that any error was harmless. See Prickett, supra. 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 the claim. In April and September 2006, the veteran submitted statements that he had no further evidence on the 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 veteran was afforded medical examinations to obtain an opinion as to whether his bilateral hearing loss can be directly attributed to service in March 2004 and February 2007. Further examination or opinion is not needed on the claim because, at a minimum, there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service. This is discussed in more 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 The veteran contends that he has bilateral hearing loss as a result of noise exposure as a weapons range instructor during service. For the reasons that follow, the Board concludes that service connection is not warranted. 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 disorder, 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to the claim of service connection for hearing loss, the U.S. Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss can be service connected. Hensley at 159. 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, 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 veteran had audiometric scores in excess of 40 dB in the 2000, 3000 and 4000 Hertz frequency ranges at his March 2004 and February 2007 examinations in both ears. The veteran clearly has a bilateral hearing loss disability for VA purposes. See id. The veteran sent in a January 2004 statement outlining his inservice acoustic exposure. The veteran stated that he had been a basic infantry training instructor, teaching the use of small arms, machine guns, mortars, recoilless rifles and grenades. The veteran indicated that he spent a great deal of time on the firing range, much of it without hearing protection. He indicated that the fire from the recoilless rifle would, at times, knock what hearing protection he had aside. The Board recognizes that the veteran is competent to report such noise exposure. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The veteran's service medical records contain records of his hearing during service. The veteran had his entrance to active duty physical examination in August 1954. The veteran underwent an audiogram, the results of which are of record. However, prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. In July 1966 VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiograms in this case conducted in 1954 must be converted from ASA to ISO units. Essentially, that means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 500 Hertz and 5 decibels at 4000 Hertz. At induction to service, the veteran underwent audiometric testing. On the authorized audiological evaluation in August 1954, pure tone thresholds, converted to ISO units in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 25 - 25 LEFT 25 20 20 - 20 The 3000 dB range was not tested in either ear. The Board notes that the veteran's puretone threshold average dB score in the right ear was 26.25 and 21.25 in the left. Speech recognition ability tests were not administered. Under the criteria of 38 C.F.R. § 3.385, the veteran had a right ear hearing loss disability at entry to active service. The left ear scores are insufficient to establish that the veteran a disability for VA purposes at entry, they do, however, demonstrate a degree of preexisting hearing loss. See Hensley, supra. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) and (b) (2007). There is no aggravation of a preexisting disease or injury if the condition underwent no increase in severity during service on the basis of all of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b) (2007). In light of the August 1954 audiometric scores, the veteran's bilateral hearing loss disorder was noted at entrance to service and the presumption of soundness does not attach. The veteran shall be considered to have had a bilateral hearing loss disorder prior to service. Since a hearing loss disorder was shown prior to service and was noted on entry, 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 section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). 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.A. § 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 this case, the veteran has not carried his burden of showing his hearing loss disorder was aggravated by service. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the Board does not doubt the veteran's sincerity or truthfulness in reporting his inservice noise exposure, the Board cannot accept his word on aggravation or causation, when his statements indicate worsening many years after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The medical evidence also does not show aggravation. The veteran's separation from service physical examination report does not include audiometric test results. The veteran did undergo a whispered voice test at both his entrance and separation physical examinations, scoring a 15 out of 15 on both tests. A July 1960 periodic examination for Reserve duty also showed a 15 out of 15 on the whispered voice test. To determine whether the veteran's current hearing loss was triggered by his inservice noise exposure, the RO sent the veteran for March 2004 and February 2007 VA examinations. The audiologist reviewing the veteran's file in March 2004 indicated that his current hearing loss was not at least as likely as not related to his inservice noise exposure. During the examination, the veteran reported that his hearing had dramatically worsened sometime in the early 1990's and the examiner concluded that the veteran's current hearing loss is not related to service. The veteran's service medical records were not of record at the time of the March 2004 VA examination. Once his service records had been associated with the file, the veteran was sent for his February 2007 VA examination. The veteran again reported a dramatic worsening of his hearing loss, this time during the 1980's. Given the gap between service and onset and the consistent whispered voice tests, the examiner concluded that the veteran's current hearing loss was not at least as likely as not related to his inservice noise exposure. These opinions are consistent and are uncontested by the remaining evidence on file. In light of the foregoing, the Board finds that the preponderance of the evidence is against aggravation of the veteran's bilateral hearing loss disability during service. The Board concludes that service connection is not warranted. See Falzone, supra. As such, the Board finds that the preponderance of the evidence is against the veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs