Citation Nr: 1007206 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-04 028 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 RO decision, which denied a claim for service connection for hearing loss. The Board notes that the Veteran cited to excerpts from several websites in the January 2009 Statement of Accredited Representative in Appealed Case in support of his argument after the November 2008 supplemental statement of the case (SSOC) was issued. However, as this evidence essentially reiterates the same points made in the literature from the American Tinnitus Association that the Veteran previously submitted prior to the SSOC, the Board finds no prejudice in proceeding to adjudicate the claim on the merits. The Board also notes that the Veteran indicated in his February 2010 Informal Hearing Presentation that he disagreed with an October 2008 rating decision, which denied entitlement to service connection for osteoporosis. This contention has yet to be addressed by the RO. As such, the issue of whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for osteoporosis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is not shown by the medical evidence of record to have hearing loss of the right ear, according to VA standards. 2. The Veteran's hearing loss of the left ear is not shown by the most probative evidence of record to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, nor may bilateral sensorineural hearing loss be presumed to have been incurred therein. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, and 3.385 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for hearing loss, 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 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (2009); 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 or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. A March 2007 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim, and VA has fulfilled its duty to assist. With regard to claims for service connection, 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. 38 C.F.R. § 3.159(c)(4)(i) (2009). The Veteran was provided a VA audiological examination for his hearing loss claim in June 2007. The Board notes that the Veteran argued in the January 2009 Statement of Accredited Representative in Appealed Case that this examination was inadequate, as the examiner failed to cite medical literature to justify her opinion and failed to address the issue of initial onset of acoustic trauma and the later development of hearing loss. However, the Board finds that the examining audiologist reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The examiner also provided a rationale for her conclusion that his current disability is not related to service. There is no indication that this audiologist's knowledge regarding the relationship between acoustic trauma and hearing loss is lacking in any way. The Board finds this examination report and opinion to be thorough and complete. Therefore, the Board finds this examination report and opinion are sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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. Analysis 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include organic diseases of the nervous system, such as hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2009). "[I]mpaired 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." The Board notes that the 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. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran essentially contends that he currently experiences hearing loss as a result of his active duty service. Specifically, the Veteran asserted in the February 2010 Informal Hearing Presentation that he served as a refueler operator for 4 years and as a heavy vehicle operator for 3 years during service. The Veteran further asserted that he had no ear protection when working on the flight line during service refueling various aircrafts. A review of the Veteran's service treatment records reveals that the Veteran's hearing was tested on several occasions throughout service. Upon entrance into service in December 1973, the Veteran underwent an audiological examination. The December 1973 audiological summary report of examination for organic hearing loss reflected puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 X 0 LEFT 5 5 10 X 5 Speech recognition ability was not recorded. A September 1976 audiological summary report of examination for organic hearing loss reflected puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 25 25 25 LEFT 30 35 35 35 40 Speech recognition ability was not recorded. An October 1976 audiological summary report of examination for organic hearing loss reflected puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 25 25 LEFT 30 35 30 35 25 Speech recognition ability was not recorded. A May 1981 separation audiological summary report of examination for organic hearing loss reflected puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 0 LEFT 15 15 20 20 15 Speech recognition ability was not recorded. With regard to a current disability, the Board notes that the Veteran underwent a VA audiological examination in June 2007. The examiner reviewed the claims file, to specifically include the December 1973 entrance examination report and May 1981 separation examination report. She noted that the Veteran's military service included exposure to aircraft engines and runways. She further noted that he was an 18- wheel rig driver in service and is a non-combat Veteran. No recreational or occupational noise exposure was noted. Upon examination, puretone thresholds were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 20 20 LEFT 25 25 25 40 50 Speech recognition ability was 96 percent for the right ear and 88 percent for the left ear. As the auditory threshold reached a level of 40 decibels or greater for at least one of the frequencies for the left ear, the criteria for hearing loss as described under 38 C.F.R. § 3.385 were met for the left ear. With regard to the right ear, the auditory threshold in any of the frequencies was not 40 decibels or greater, the auditory thresholds for at least three of the frequencies were not 26 decibels or greater, and the speech recognition score using the Maryland CNC Test was not less than 94 percent. As such, the criteria for hearing loss as described under 38 C.F.R. § 3.385 were not met for the right ear. Upon review of the claims file and examination of the Veteran, the examiner determined that it is not at least as likely as not that the Veteran's hearing loss is related to service, since the discharge audiological evaluation yielded normal hearing bilaterally. In addition, the claims file also contains private treatment records from Beltone Hearing Aid Center. These treatment records consist of uninterpreted audiograms from October 2004 and June 2006. The Board, however, is not competent to interpret graphical representations of audiometric data. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated hearing loss of either ear to a compensable degree within one year of discharge from active duty. As such, service connection for hearing loss cannot be granted on a presumptive basis. With regard to granting service connection on a direct basis, the Board notes that the Veteran is competent to offer a description of the symptoms he experienced in service, and to describe a continuity of symptoms since service. A layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran has reported that he currently experiences impaired hearing, an observation which he is competent to make. However, he has not specifically asserted that he has experienced hearing impairment since his active duty service. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim, the competent medical evidence of record, to specifically include the June 2007 VA examination report, does not show the Veteran to have hearing loss of right ear. Thus, without a diagnosis, there may be no service connection for hearing loss of the right ear on a direct basis. With regard to the Veteran's claim for service connection for hearing loss of the left ear, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2009). Currently, there are no lay assertions of a continuity of symptoms since service, and the only medical opinion of record on the matter has specifically indicated it is not at least as likely as not that the Veteran's hearing loss is related to service. Thus, the Veteran's claim for service connection for hearing loss of the left ear must fail on a direct basis as well. See Shedden, supra. The Board acknowledges the contentions set forth in the February 2010 Informal Hearing Presentation that in-service audiological test results from September 1976 show that the Veteran's hearing acuity had decreased since his December 1973 entrance examination and, therefore, that damage to his hearing had already occurred at this point in time. However, the Board notes that the examiner at the June 2007 VA examination specifically indicated that she reviewed the claims file. There is no indication in the evidence of record that the examiner did not have access to these service treatment records or did not consider these records in rendering her opinion. Thus, while the Board has considered the Veteran's contentions with regard to the September 1976 audiological results, service connection may still not be granted for the Veteran's hearing loss, as the only medical opinion of record on the matter determined the Veteran's hearing loss to be unrelated to service, based on a review of the claims file, to include the Veteran's service treatment records. Additionally, the Board has reviewed the literature that the Veteran has submitted from the website of the American Tinnitus Association and in his Statement of Accredited Representative in Appealed Case. However, the Board finds that such generic texts are less probative than the opinion of the VA examiner who considered the facts and circumstances of the Veteran's particular case. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Board again acknowledges the Veteran's contentions that he has bilateral hearing loss as a result of his active duty service. However, as noted, the Veteran has not alleged a continuity of symptomatology since service, and the medical evidence of record does not otherwise support his contention that his current hearing loss is related to service. The Veteran can attest to factual matters of which he had first- hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, 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, 495 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Therefore, the Board finds the VA opinion to be far more probative than the Veteran's lay assertions. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs