Citation Nr: 1007708 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 08-08 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant, L.M. (his mom), and R.M. (his brother) ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran served on active duty from August 9, 1997, to August 23, 1997. This appeal to the Board of Veterans' Appeals (Board) is from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee - which, in relevant part, denied the Veteran's claim for service connection for bilateral hearing loss. In July 2009, as support for this claim, the Veteran, his mother, and brother testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, also commonly referred to as a Travel Board hearing. FINDING OF FACT The Veteran clearly and unmistakably had bilateral hearing loss when entering the military, which clearly and unmistakably did not permanently worsen during or as a result of his 14 days of service. CONCLUSION OF LAW The Veteran does not have a bilateral hearing loss disability due to a disease or an injury incurred in or aggravated by his military service or that may be presumed to have been incurred in service. 38 U.S.C.A §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review. The Board will then address the claim on its merits, providing relevant VA laws and regulations, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). These VCAA notice requirements 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in October 2006, prior to initially adjudicating his claim in January 2007, the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). The letter notified him of the type of evidence and information needed to substantiate his claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also informed the Veteran of the downstream disability rating and effective date elements of his claim. See Dingess, supra. So VA has fulfilled its duty to notify obligation. See Shinseki v. Sanders, 129 S. Ct. 1626 (2009) (indicating that, as the pleading party, it is the Veteran's burden, not VA's, to show there is a VCAA notice error and that it is prejudicial, i.e., outcome determinative). During his July 2009 hearing, the Veteran and his family testified that there is no additionally relevant treatment or other records that need to be obtained, which are obtainable. When questioned further concerning this, they indicated his ears were evaluated by Drs. Foote and Harris shortly after he was medically discharged from service, but that they already had tried to obtain these records and, unfortunately, were told they no longer exist. Therefore, further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that the duty to assist is not a license for a fishing expedition to determine if there might be some unspecified information which could possibly support a claim.). The Board realizes the Veteran has not been afforded a VA examination for a medical opinion concerning the etiology of his bilateral hearing loss, including in terms of whether it is attributable to his military service - either as directly incurred in service or, if pre-existing his service, as a result of chronic aggravation of this condition while he was in service. But an examination and opinion are not needed to fairly decide this appeal because the requirements of the Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. In McLendon, the Court held that a medical examination is necessary in a service-connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Id., at 81. See also 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Here, though, there is documented evidence of hearing loss prior to service, discounting the notion the Veteran did not have pre-existing hearing loss. And he only served in the military for a very short time, 14 days, with no credible indication of a permanent worsening of this pre-existing hearing loss during or as a consequence of his service. There is only his unsubstantiated lay allegation, which is insufficient to schedule a VA examination for an opinion. See, e.g., Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Therefore, the third prong of McLendon has not been met. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or Court. II. Service Connection for Bilateral Hearing Loss Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Certain chronic diseases, such as organic disease of the nervous system, including sensorineural hearing loss, may be presumed to have been incurred in service if manifested to a compensable degree (of at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by probative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish entitlement to service connection, there generally must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus, i.e., link between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). With respect to the first requirement of a current disability, before service connection may be granted for hearing loss it must be of a particular level of severity. 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, 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. Here, even assuming for the sake of argument that the Veteran has met this threshold preliminary burden of establishing he has a current hearing loss disability according to the requirements of this VA regulation, his claim still fails because there is no probative (meaning both competent and credible) evidence indicating his hearing loss was caused or aggravated by his 14 days of active duty service. Instead, the evidence shows he had pre-existing hearing loss when entering the military that was not aggravated during his service beyond its natural progression. The Veteran's service treatment records (STRs) confirm he entered the military with pre-existing bilateral hearing loss. Audiometric testing performed during his enlistment examination on July 26, 1979 revealed a 35-decibel loss at 500 Hz, a 20-decibel loss at 1000 Hz, a 25-decibel loss at 2000 Hz, and a 35-decibel loss at 4000 Hz in his right ear. Testing of his left ear revealed a 30-decibel loss at 500 Hz, a 50- decibel loss at 1000 Hz level, a 20-decibel loss at 2000 Hz, and a 30-decibel loss at 4000 Hz. See Hensley v. Brown, 5 Vet. App. 155 (1993) (indicating the threshold for normal hearing is from zero to 20 decibels, and that higher threshold levels indicate some degree of hearing loss (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). The report of the Veteran's military enlistment examination also noted that he had undergone some kind of ear operation prior to service, when he was 13, apparently after rupturing his tympanic membrane (ear drum). And he confirmed as much during his July 2009 hearing, also indicating he had a tube inserted in his ear when he was 9 years old. These findings clearly and unmistakably show the Veteran had bilateral hearing loss when he began his active duty military service on August 9, 1979. The presumption of soundness found at 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304(b) attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This clearly was not the situation here. So this, in turn, means that VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) do not apply, i.e., VA does not have to show by clear and unmistakable evidence both that he had this condition prior to service and that it was not aggravated by his service. Instead, he, not VA, has the burden of showing a chronic worsening of this pre-existing condition while in service. If, as here, a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The provisions of 38 U.S.C.A. § 1153 [and the implementing regulation, 38 C.F.R. § 3.306] provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre- existing injury or disease will be considered to have been aggravated by active military, naval, or air 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. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); and Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Only if the Veteran manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). In this case, however, aggravation has not been shown for either ear. The only other audiometric testing during service was performed on August 13, 1979, just 10 days prior to the Veteran's separation from service. Testing of his right ear revealed a 35-decibel loss at 500 Hz, a 20-decibel loss at 1000 Hz, a 15-decibel loss at 2000 Hz, and a 20- decibel loss at 4000 Hz. Testing of his left ear revealed a 45-decibel loss at 500 Hz, a 35-decibel loss at 1000 Hz, a 25-decibel loss at 2000 Hz, and a 30-decibel loss at 4000 Hz. Comparing these findings to those from the earlier enlistment examination fails to show any appreciable worsening of his pre-existing hearing loss during or as a consequence of his military service. Indeed, his right ear demonstrated a slight improvement in two of the relevant frequencies (2000 and 4000 Hz) and remained the same in the other two (500 and 1000 Hz). As well, his left ear showed a slight improvement in the 1000 Hz frequency, just a slight worsening in the 500 and 2000 Hz frequencies, and remained the same at 4000 Hz. These slight variations do not reflect any material changes in the overall status of his hearing acuity. The Veteran's STRs show he was medically discharged from the military because of his pre-existing hearing loss due to an old perforated ear drum, and that this pre-existing disability was not aggravated by his military service. When seen on August 11, 1979, it was noted that he had a large perforated right drum, old, which was draining. It was noted this disability EPTS [existed prior to service], as reflected in the enlistment examination report. See also 38 C.F.R. § 3.303(c) indicating that, in regards to pre-service disabilities noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary. Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof. When subsequently seen on August 14, 1979, the diagnoses were: (1) otitis media, right ear, chronic, suppurative, right ear, with mild hearing loss; and (2) perforation, tympanic membrane, right ear, large. The Veteran was then discharged from active duty on August 23, 1979, after a Medical Board found him unfit for enlistment or retention due to these problems. The Medical Board report indicated that none of his ear problems had been aggravated by his military service. Thus, the Veteran's STRs do not document any chronic worsening of his pre-existing hearing loss during his 14 or so days of active military service. There certainly is no indication of aggravation of this pre-existing condition beyond its natural progression. The Board also has considered the lay statements by the Veteran, his mother, and brother, including their testimony during the hearing before an RO hearing officer in February 2008, as well as before the undersigned Veterans Law Judge of the Board more recently in July 2009. The Veteran and his mother testified that he had no problems with either ear prior to service, although it was later acknowledged that he had a tube placed in his left ear when he was 9 years old. The Veteran stated, however, that his biggest problem was with his right ear. He testified that his hearing loss was the result of a severe earache he experienced in service while flying to Georgia and South Carolina. He explained that his ears began to pop during the flight and that he experienced discharge in both ears later that night. Both he and his mother believe he should have been given antibiotics at that time, instead of being discharged without ever receiving any treatment, which, they contend, ultimately caused his current hearing loss disability. The Veteran, his mother, and brother are competent, even as laypersons, to attest to factual matters of which they have first-hand knowledge, e.g., witnessing discharge from his ears and him experiencing difficulty hearing since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 007); and Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). But independent medical evidence is needed to support a finding that the documented pre-existing hearing loss increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). And, unfortunately, there simply is no such medical evidence in this particular instance. 38 C.F.R. § 3.159(a)(2). See also Rucker v. Brown, 10 Vet. App. 67 (1997) and 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")). For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. And as the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal is denied. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs