Citation Nr: 1030786 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 07-24 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert Morales, Law Clerk INTRODUCTION The Veteran served on active military duty from January 1958 to January 1962 as an aviation electronics mate in the U.S. Navy. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the above Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran currently has hearing loss in his left ear. 3. There is no evidence of a disability due to right ear hearing loss for VA compensation purposes. 4. The Veteran's left ear hearing loss is not the result of noise exposure while in active military duty. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1131, 1132, 1133, 1137, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309, 3.385 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claim Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 38 U.S.C.A. §§ 5100, 5103, 5103A, 5104; 38 C.F.R. §§ 3.159 and 3.326(a). In a letter dated in April 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for service connection for bilateral hearing loss, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Prinicipi, 16 Vet. App. 183, 187 (2002). Accordingly, the Board finds that VA met its duty to notify the Veteran of his rights and responsibilities under the VCAA. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence, affording him a medical examination, obtaining a medical opinion as to the etiology of his hearing loss, and by affording him the opportunity to give testimony before the Board, although he withdrew his request to do so. VA has also gathered all the evidence that the Veteran has identified as relevant to his claim. Furthermore, the examination included a well-reasoned medical opinion as to the diagnosis and etiology of the Veteran's alleged disability based on a thorough review of the claims file along with the Veteran's complaints. As such, it is deemed adequate for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, it appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file, and the Veteran does not contend otherwise. Therefore, the Board finds that VA has complied with its duty to provide notice and assistance under the VCAA. See 38 U.S.C.A. §§ 5100, 5103, 5103A, 5104; 38 C.F.R. §§ 3.159 and 3.326(a). As such, the Board will now address the merits of the Veteran's claim. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.03(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to establish service connection for a claimed disorder, the following must be shown: (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. Id. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay statements do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributed to intercurrent causes. See 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. 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. See 38 C.F.R. § 3.303(d). When assessing whether a veteran has a hearing impairment for VA compensation purposes, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) must be 40 decibels (dB) or greater; or, the auditory threshold of at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz must be 26 dB or greater; or, the speech recognition scores using the Maryland CNC Test must be less than 94 percent. See 38 C.F.R. § 3.385. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions and is consistent with the probable results of such known hardships. Id. The Veteran asserts that his hearing loss was caused while working on the electrical systems of aircrafts while the aircraft engines were running including being in-flight. He acknowledges that he was not treated for hearing loss during service or within one year of separation. Indeed, the service treatment records (STRs) are devoid of any complaint, diagnosis, or treatment of hearing loss. However, the Board notes that the STRs do not contain any evidence of an audiometric examination being performed during the Veteran's military service. The first evidence of a hearing loss disability is dated in January 2006 when the Veteran underwent an audiometric examination conducted by the private facility, B.H.A.C.. This audiometric examination report was presented graphically without interpretation; however, it appears to suggest that the Veteran had hearing loss. The Board notes that it is not competent to interpret graphical representations of audiometric data and, therefore, is unable to determine whether the Veteran met the criteria for hearing loss under 38 C.F.R. § 3.385 according to this graph alone. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995). In May 2006, the Veteran underwent a VA audiometric examination. During this examination, the Veteran reported 46 years of occupational noise exposure to backhoes on job sites selling manufactured homes and non-occupational noise exposure from hunting before and after service. He also reported having tinnitus and pain in his ears during allergy season. The pure tone thresholds, in dB, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 00 00 05 10 20 LEFT 35 30 25 50 65 Speech audiometry revealed speech recognition ability of 100 percent in the right ear as well as for the left ear. The VA examiner concluded that the tympanograms were within normal limits bilaterally. She further concluded that hearing in the right ear was clinically normal while hearing in the left ear represented a sharply sloping hearing loss from mild to moderate. Upon a review of the claims record and the examination results, she concluded that the hearing loss is not caused by or a result of acoustic trauma while in the military based on the configuration and type of loss which is consistent with a middle ear problem in the left ear rather than a sensorineural loss which could be consistent with noise exposure. Based on these findings, the Board finds that the threshold values in the Veteran's left ear at the frequencies of 3000 and 4000 Hz level reflect a disability for VA compensation purposes. See 38 C.F.R. § 3.85. Likewise, the auditory threshold of four of the frequencies is greater than 26 dB which also meets the criteria for hearing loss disability. See id. However, the criteria for hearing loss have not been met in the right ear. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 dB). Therefore, the Veteran has a hearing loss disability in his left ear only for VA compensation purposes. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Shedden, 381 F.3d at 1167. In February 2007, a private audiologist from the B.H.A.C. opined that, based on his review of the STRs, the Veteran's hearing loss and tinnitus is very likely as not caused by acoustic trauma caused by jet engines while in service. The audiologist noted that jet engines have a noise level of 140 dB and that based on recommendations by the National Institute for Occupational Safety and Health, the Veteran would have sustained hearing loss within minutes of being on the flight line. However, the audiologist mentions that the Veteran's entrance examination showed no hearing loss upon entry into the U.S. Navy and that his separation physical would show hearing loss upon separation. Those statements are vague and make it clear that the audiologist had not, in fact, reviewed the Veteran's service records. As mentioned above, the STRs show no evidence of any audiological examinations during service. The Board notes that it is not a strict requirement for private medical opinions to be based on a review of the claims file, and that a private medical opinion may not be discounted solely because the opining clinician did not review the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, the audiologist did not discuss noise exposure outside of the military and does not give a detailed opinion on how the Veteran's hearing loss is related to his military service. As such, the Board finds the audiologist's medical opinion lacks credibility as to etiology of the Veteran's hearing loss. See id.; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board must accept the VA examiner's medical opinion over the private audiological opinion as the VA examiner's opinion is more credible and probative. See Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). The VA examiner's opinion included a detailed rationale based on the results of an audiological examination, a review of the STRs, and the Veteran's complaints while the private audiologist's opinion was statistical and not specific to the Veteran. See Evans v. West, 12 Vet. App. 22, 30 (1998); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Although the Veteran is currently afflicted with hearing loss in his left ear, the Board finds that there is no in-service injury or disease that can account for the present disability. See Shedden, 381 F.3d at 1167. Here, the Veteran has presented lay testimony that hearing loss occurred in-service. However, a diagnosis of hearing loss and the determination of its medical etiology requires medical knowledge. See Espiritu, 2 Vet. App. at 495. The Veteran is competent to testify as to his subjective experiencing of hearing loss, but not to the actual diagnosis. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1336; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Also, the Veteran wrote a letter to VA in January 2006 that stated that he went to the doctor "many times" because he couldn't hear and was suspended from flight status due to ear pain. However, the STRs do not reflect either visits to the doctor or removal from flight status. Thus, the Veteran's statements are inconsistent with the record and found to lack credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Furthermore, the Board notes that a prolonged period without medical complaint may be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the present case, the treatment records do not show complaints of hearing loss for almost 50 years after service. Therefore, the Board finds that the great weight of the evidence is against a finding of a causal link between the Veteran's current hearing loss and his active military service. Consequently, the evidence is not so evenly balanced as to allow application of the benefit-of-the-doubt rule and the claim for entitlement to service connection for hearing loss is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs