Citation Nr: 1113232 Decision Date: 04/04/11 Archive Date: 04/13/11 DOCKET NO. 07-06 358A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from June 1958 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was previously before the Board in August 2009 and May 2010, at which times the case was remanded to the RO for additional development. As will be discussed herein, there has been substantial compliance with those remand instructions and the case is ready for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) As was pointed out previously in the August 2009 and May 2010 Board remand, a claim of entitlement to service connection for hypertension 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 The evidence of record does not show that the Veteran's currently manifested bilateral hearing loss has been chronic and continuous in and since service, or that it is etiologically related to his period of active military service, to include presumptively. [Continued on Next Page] CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claim in a letter dated in August 2005, wherein he was advised of the provisions relating to the VCAA. Specifically, the Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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). Specifically, this information must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was also provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in June 2006. Subsequent adjudication of the claim on appeal was undertaken in a Statement of the Case (SOC) issued in February 2007 and in a Supplemental SOC issued in November 2010. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The Board also finds that all of the relevant facts have been properly developed and that all available evidence necessary for an equitable resolution of the service connection claim for bilateral hearing loss on appeal has been obtained. The Veteran's service treatment records (STRs) have been obtained. Also on file are the Veteran's post service VA medical records. Significantly VA audio examinations were conducted in May 2006 and January 2010, with an addendum provided in October 2010. The Veteran has mentioned undergoing audiological tests through his employer GM between 1965 to 1995, but provided no information which would assist in obtaining any such records. The United States Court of Appeals for Veterans Claims (Court) has held that that it is "ultimately the claimant's responsibility" to provide the information necessary to locate and secure non-governmental relevant records; that information was not provided in this case as pertains to the aforementioned evidence. Hyatt v. Nicholson, 21 Vet. App. 390 (2007). Moreover, it was also found in the Hyatt case, there can be no breach of the duty to assist where the appellant acknowledges the unavailability of records, as is effectively the case as to these records. Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the Veteran's behalf. See 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). The Board finds that as to the claim being decided herein on appeal, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background In July 2005, the Veteran filed an original service connection claim for bilateral hearing loss, he did not identify a date on which his claimed disability began. His DD 214 reflects service with the United States Air Force with an MOS of Aircraft Fuel System Mechanic. The STRs include an enlistment examination report of May 1958, which reflects that clinical evaluation of the ears and drums was normal and that bilateral hearing acuity was 15/15. Hearing conservation data of July 1960 revealed acoustic exposure from gunfire, for a duration of 1 year occurring 2 hours daily, with ear protection worn seldom or never. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO)-American National Standards Institute (ANSI). On audiological evaluation of July 1960, pure tone thresholds, in decibels, as converted to ISO-ANSI standards (with original reading in parentheses), were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 (5) 10 (0) 0 (-10) 5 (-5) 15 (10) LEFT 20 (5) 10 (0) 0 (-10) 5 (-5) 10 (5) Hearing conservation data of July 1963 revealed acoustic exposure from gunfire, with no indication of exposure time, and a notation that ear protection was worn seldom or never. On audiological evaluation of July 1963, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 (10) 20 (10) 20 (10) 15 (5) 15 (10) LEFT 15 (0) 15 (5) 15 (5) 15 (5) 20 (15) The September 1965 separation examination report reflected that clinical evaluation of the ears and drums was normal and that that the Veteran denied having running ears or ear trouble. On audiological evaluation, pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (0) 15 (5) 10 (0) 5 (-5) 5 (0) LEFT 15 (0) 10 (0) 10 (0) 15 (5) 10 (5) A VA examination was conducted in May 2006 and the claims folder was reviewed. The Veteran complained of hearing loss and gave a 7-year history of military service with exposure to jet engine noise and noise on the flight line. He also gave a history of noise exposure while working at General Motors (GM) for 30 years, but reported that he wore ear protection from the late 1980's forward. He stated that during that time, he underwent occupational hearing tests and was told that he had a hearing problem. On audiological evaluation, pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 50 55 LEFT 15 5 5 50 70 Regarding the right ear, a pure tone hearing threshold average of 27.5 and a speech recognition score of 100 percent were reported. With respect to the Veteran's left ear, a pure tone hearing threshold average of 32.5 and a speech recognition score of 96 percent were reported. Bilateral sensorineural hearing loss within normal limits through 2,000 hertz and sharply sloping to moderate and moderately severe from 3,000 to 4, 000 hertz was diagnosed. It was noted that speech recognition was considered to be unimpaired. The examiner opined that it was less likely than not that the hearing loss was caused by or the result of military service, in light of documentation of normal hearing acuity at discharge and a post-service history of occupational noise exposure. In a statement provided in June 2006, the Veteran indicated that he sustained acoustic trauma for several years during service while working on a flight line and around aircraft, with no hearing protection provided. In a statement provided in March 2007, the Veteran reiterated his history of acoustic trauma in service and indicated that his current hearing loss had its origin in service and continued to decline over his lifetime. VA records dated in 2009 reflect that the Veteran was fitted for and provided with hearing aids. A VA examination was conducted in January 2010 and the claims folder was reviewed. The Veteran complained of hearing loss and gave a 7.5 year history of military service in the Air Force with exposure to noise on the flight line. He also gave a history of high level machine noise while working at GM for 30 years, but reported that he wore ear protection. He reported that during that time, he underwent occupational hearing tests and was told that he had a hearing problem. On audiological evaluation, pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 55 60 LEFT 20 15 10 55 75 Regarding the right ear, a pure tone hearing threshold average of 37.5 and a speech recognition score of 96 percent were reported. With respect to the Veteran's left ear, a pure tone hearing threshold average of 38.75 and a speech recognition score of 96 percent were reported. Bilateral sensorineural hearing loss described as moderately severe to severe in the right ear and moderate to severe in the left ear was diagnosed. The examiner opined that it was less likely than not that hearing loss was caused by or the result of service-related acoustic trauma, as the separation audiogram indicated normal hearing on separation. It was also explained that the Institute of Medicine (IOM) had concluded that there was no sufficient scientific basis of delayed onset hearing loss. The examiner noted that while the IOM had stated that delayed onset might exist, there were no longitudinal studies supporting it at this time. The examiner also added that the IOM had concluded that given current knowledge of acoustic trauma and rapid onset of noise induced hearing loss, there was no reasonable basis for delayed onset hearing loss. In April 2010, the Veteran's representative argued that the Veteran's reports of continued symptomatology of hearing loss since in and since service had not been adequately considered at the time of January 2010 VA audio examination, as was directed by the Board in the August 2009 remand ordering that examination. The Board remanded the case in May 2010, for an opinion which reflected consideration of the Veteran's lay statements and history. In October 2010, the VA examiner who conducted the January 2010 examination provided an addendum. At that time, the examiner again noted that the Veteran reported sustaining acoustic trauma from the flight line while serving in the Air Force. He also gave a history of working as a machinist for GM from 1965 to 1995, indicating that GM did not provide hearing protection until the 1970's. The examiner reiterated that the service separation audiogram revealed normal hearing at discharge and also mentioned that the veteran had a history of post-service acoustic trauma working as a machinist. The examiner opined that therefore, it was less likely than not that military service was the etiology of the current hearing loss. Analysis The Veteran has claimed that he has bilateral hearing loss for which service connection is warranted. He maintains that he was exposed to acoustic trauma from working on the flight line and around air craft while serving in the Air Force from 1958 to 1965, causing the claimed hearing loss, and contends that he has experienced chronic hearing loss in and since service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). 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). Service connection for organic diseases of the nervous system, such as hearing loss, may additionally be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). With respect to the hearing loss claim, the provisions of 38 C.F.R. § 3.385 define disability due to impaired hearing. For the purpose of applying the laws administered by VA, impaired hearing is 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 those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. It is VA's defined and consistently applied policy 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. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). Generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to claimed bilateral hearing loss, Hickson element (1) evidence of currently manifested hearing loss has been presented. Specifically, upon VA audiological evaluation conducted in 2006, bilateral hearing disability as defined under 38 C.F.R. § 3.385, was shown. With regard to Hickson element (2), the Veteran has reported experiencing acoustic trauma in conjunction with his service in the United States Air Force. He is competent to describe noise exposure sustained during service and his statements and testimony to this effect are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, hearing conservation data on file confirms that the Veteran sustained acoustic trauma in service. The Board notes that absolutely no hearing deficit was demonstrated in either ear as shown by a May 1958 enlistment examination or on audiological testing conducted in July 1960. See Hensley v. Brown, 5 Vet. App. 155 (1993), the threshold for normal hearing was from 0 to 20 decibels, and that higher threshold levels revealed some degree of hearing loss, (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al eds., 1988)). There was an acute indication of mild hearing deficit in the right ear only, and only at 500 decibels, as documented in a July 1963 audiogram. Subsequently, audiological testing conducted in September 1965 as shown in the separation examination report, was entirely normal, bilaterally. Even having established that the Veteran sustained acoustic trauma in service, the Board points out that acoustic trauma and noise exposure sustained in service are not, in and of themselves, disabilities subject to service connection under VA regulations. A chronic disease need not be diagnosed during the presumptive period under 38 C.F.R. § 3.307(c), but if not, there must then be shown by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, bilateral hearing loss meeting the threshold requirements of 38 C.F.R. § 3.385 was not initially shown until 2006, approximately 40 years after the Veteran's separation from service; as such service connection on a presumptive basis is not warranted. Under 38 C.F.R. § 3.303(b), a method of establishing the second and third Hickson elements is through continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In this case, the Veteran has reported that he has experienced hearing loss essentially in and since service, and he is generally competent to do so. Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also 38 C.F.R. § 3.159(a)(2). However, the Veteran's lay statements are not competent for purposes of determining whether and when the level of his hearing loss met the threshold requirements of a hearing disability for VA purposes. In this regard, certain audiological findings define a hearing loss disability for VA purposes and in this case, such findings were not shown until 2006. See 38 C.F.R. § 3.385 (2010). The Court has stated that the 38 C.F.R. § 3.385 "prescribes the level at which a hearing loss becomes a disability for purposes of entitlement to VA compensation.... [N]ot every change in hearing should be service connected." See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). With regard to the decades-long evidentiary gap between active service and the earliest post-service findings of bilateral hearing loss made in 2006, the lack of any evidence of continuing complaints, symptoms, or findings for many years between the period of active duty and the first evidence of bilateral hearing loss is itself evidence which tends to show that hearing loss has not been chronic and continuous in and since service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim on a direct basis). With respect to the Veteran's lay statements as to continuity and chronicity of hearing loss in service, the Board initially points out that the only indication of any hearing loss during service, was documentation of an acute and isolated finding of mild hearing deficit in the right ear only, and only at 500 decibels, as documented in a July 1963 audiogram. Subsequent audiological testing conducted in September 1965, was entirely normal, bilaterally, as were audiological tests conducted prior to July 1963. Hence, the clinical evidence refutes the Veteran's lay statements with respect to sustaining chronic hearing loss in service. With respect to the Veteran's lay statements as to continuity and chronicity of hearing loss since service, based on a history given by the Veteran, post-service, he sustained high-level acoustic trauma from machine noise (VA examination report January 2010) working as a machinist for GM for 30 years from 1965 to 1995. He has alternately reported that hearing protection was provided by GM but not until the late 1980's (May 2006 VA examination report), later indicating that ear protection was provided during the 1970's. At any rate it is clear, per his own report, that the Veteran sustained significant and sustained post-service acoustic trauma of an industrial nature between 1965 and the 1970's or even into the late 1980's. He has also reported that he was first told he had a hearing problem at the time of a periodic occupational hearing test. The Board must point out that with respect to the Veteran's self report of exposure to significant acoustic trauma post-service without hearing protection for years, resulting from his employment with the GM for 30 years, such acoustic trauma was far more sustained, more recent, and of longer duration than any remote acoustic trauma the Veteran may have sustained during service from 1958 to 1965. In this regard, of particular significance is the fact that hearing loss was not shown upon separation from service in September 1965, and was not initially identified until sometime during the course of the Veteran's post-service employment with GM. Given that the Veteran began working from GM in 1965, there is no credible support for, and in fact the clinical evidence refutes, the Veteran's statements to the effect that he had hearing loss symptomatology (other than one acute and extremely minimal finding in 1963) prior to his employment with GM. To the extent that any chronicity and continuity of hearing loss is alleged post-service, based on the aforementioned evidence it would necessarily have arisen during the course of his post-service employment with GM. 38 C.F.R. § 3.303(b) (2010). The Veteran maintains that his hearing loss is of the nature of delayed onset. Hence, a critical issue in this case is whether the Veteran's currently manifested bilateral hearing loss is related to noise exposure sustained during service. The requirement of an evidentiary showing of an etiological relationship has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Essentially, this is the third Hickson element. The record contains three medical opinions addressing this matter. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In 2006, a VA examiner having recorded the Veteran's history of in-service and post-service noise exposure and having reviewed the claims folder and examination results, concluded that it was not likely that the Veteran's bilateral hearing loss was caused by or the result of his military service, primarily reasoning that there was no clinical evidence of hearing deficit as shown on separation and that the Veteran had a history of significant post-service noise exposure. In January and October 2010, a VA examiner again determined that given that there was no clinical evidence of hearing deficit as shown on separation and that the Veteran had a history of significant post-service noise exposure, it was less likely than not that the Veteran's bilateral hearing loss was caused by or the result of his military service. That examiner also indicated that the IOM had found no studies or scientific basis to support the concept of delayed onset of hearing loss. These three negative opinions are found to carry significant weight and are supported by the evidentiary record and medical principles. In addition, the file contains no competent medical opinion to the contrary and the Veteran has not provided any competent medical evidence to diminish its significant probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Lay assertions from the Veteran as to the etiology of his bilateral hearing loss (service related due to acoustic trauma sustained therein) are not consistent with the objective evidence of record which does not reflect evidence of any hearing loss on service separation in September 1965 or even suggest a relationship between currently manifested bilateral hearing loss and service, and fails to account for his sustained significant post-service acoustic trauma. See Davidson v. Shinseki, 581 F.3d 1313, (Fed Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d 1372 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, for the reasons explained above, the lay statements and contentions of the Veteran as to the etiology of his claimed hearing loss are of no probative value are as compared to the clinical evidence and VA medical opinions on file. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (1998); (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed.) Overall, the evidence is not in relative equipoise and the most probative evidence of record addressing the etiology and onset of the Veteran's hearing loss weighs against service incurrence. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The benefit sought on appeal is therefore denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs