Citation Nr: 1107512 Decision Date: 02/24/11 Archive Date: 03/09/11 DOCKET NO. 05-17 462A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran (Appellant) represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from December 1984 to December 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. By that rating action, the RO, in part, denied service connection for bilateral hearing loss (originally claimed as left ear hearing loss). The Veteran appealed the RO's August 2004 rating action to the Board. In February 2009, the Board remanded the Veteran's claims (originally considered by the Board as entitlement to service connection for bilateral hearing loss) to the RO for additional development, to include scheduling him for a VA audiological examination. This examination was conducted in April 2009. A copy of the examination report is contained in the claims files. The case has returned to the Board for appellate consideration. The issue of entitlement to service connection for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The competent and probative medical evidence of record reflects that the Veteran's right ear hearing loss did not originate during military service or until decades thereafter, and is not otherwise etiologically related thereto. 2. The Veteran's contention that he has right ear hearing loss that is related to acoustic trauma during military service is not competent evidence. CONCLUSION OF LAW The criteria to establish service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit)(as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See also Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Federal Circuit held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, complete VCAA notice as to the claim for service connection for right ear hearing loss was not provided until after the appealed August 2004 rating decision was issued. (See March 2009 letter from the RO to the Veteran). However, the Veteran was not prejudiced from this timing error because the RO readjudicated the above-cited claim in an August 2010 supplemental statement of the case. Thus, the Board finds that the essential fairness of the adjudication process was not affected by the VCAA timing error. In addition, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (those five elements include: Veteran status, existence of a disability, connection between the Veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this case, via the above-cited March 2009 letter, VA informed the Veteran of the Dingess elements. The RO has taken appropriate action to comply with the duty to assist the Veteran with the development of the claim for service connection for right ear hearing loss analyzed in the decision below. Regarding VA's duty to assist the Veteran with his claim for service connection for right ear hearing loss, the record includes service treatment records (STRs), as well as private and VA examination medical records and testimony from an October 2000 RO hearing. In addition, in April 2009 and pursuant to the Board's February 2009 remand directives, VA examined the Veteran to determine the etiology of his right ear hearing loss. A copy of the April 2009 VA examination report is contained in the claims files. Given the foregoing, the Board finds that the RO has substantially complied with the Board's February 2009 remand directives for the service connection issue decided. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) ((remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with)), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that there is no further assistance that would be reasonably likely to substantiate the claim for service connection for right ear hearing loss analyzed in the decision below. II. Merits Analysis Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for certain chronic diseases, such as sensorineural hearing loss, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. 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). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385 (2010). Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. Id. The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 160 (1993). An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.16(a) (2010). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has right ear hearing loss as a result of having been exposed to acoustic trauma during his period of active military service. The Veteran acknowledges that he had some post-service occupational noise exposure while employed as a firefighter and as a project manager at a construction site. As the Veteran's Report of Separation from the Armed Forces (DD 214) reflects that his military occupational specialty was a Landing Support Specialist, the Board finds his reports of noise exposure credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a)(West 2002); Hensley v. Brown, 5 Vet. App. 155 (1993). The Board finds that the preponderance of the evidence is against the claim for service connection for right ear hearing loss because the competent medical evidence is against a nexus to military service. The Veteran's STRs contain audiograms that were performed at service enlistment in July 1984, as well as in December 1984, January 1986, April 1987, and at service separation in November 1988, reflecting that his auditory thresholds in the frequencies of 500, 1000, 2000, 3000 and 4000 were less than 40 decibels in the right ear and none of the frequencies were greater than 25 decibels. The Veteran's ears were evaluated as "normal" at service separation in 1988. The question to be answered is whether the Veteran currently has a right ear hearing loss disability for VA purposes, and, if so, whether such disability is linked to the reported in-service noise exposure. The medical evidence shows that the Veteran has bilateral hearing loss as defined by VA. (See April 2009 VA audiological examination report, reflecting right ear hearing of 30 decibels (dB) at 1000 and 3000 Hertz (Hz) and 35 decibels at 4000 Hz). A significant lapse in time between service and evidence of post- service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed Cir. 2000). The Board finds that the considerable gap in time between references to right ear hearing loss complaints from service discharge in 1988 to 2009 militates against the probative value of the Veteran's account of his symptoms prior to 2009. The Board accordingly finds his account concerning the occurrence of his right ear hearing loss symptoms prior to 2009 lacks credibility. As to the medical opinion evidence in this case, the Board notes that there is one opinion and it is against the claim. In April 2009, a VA examiner opined, after a review of the Veteran's reported in-service history of acoustic trauma and review of his STRs, that it was not as likely that the Veteran's "current hearing loss" was a result of noise exposure that he had incurred during military service. In reaching this conclusion, the VA examiner reasoned that there were no standard threshold shifts when he compared audiometric results from the Veteran's entrance and discharge examination reports. This opinion is consistent with the evidence of record, uncontroverted and weighs against the claim for service connection for right ear hearing loss. (See April 2009 VA audio examination report). Moreover, as there is no evidence of right ear hearing loss manifested to a compensable degree within a year of the Veteran's discharge from service in 1988, service connection is also not warranted for this disability on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board concludes that the preponderance of the evidence therefore is against the claim for service connection for right ear hearing loss. As the evidence preponderates against the claim, the benefit- of- the- doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As to the Veteran's contention that his current right ear hearing loss is etiologically related to acoustic trauma during his period of military service, he is not medically qualified to render such an opinion. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for the cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). While the Veteran is competent to provide statements concerning factual matters of which he has firsthand knowledge, he is not competent to relate his current right ear hearing loss to acoustic trauma sustained during military service. Barr, supra.; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (observing laypersons not competent to state in-service symptoms were indicative of rheumatic fever). ORDER Service connection for right ear hearing loss is denied. REMAND A review of the claims files reflects that additional evidentiary development is necessary prior to final appellate review of the claim for service connection for service connection for left ear hearing loss. In particular, while the Veteran underwent a VA examination in June 2010, the examination report is not of sufficient detail to ensure informed appellate review. The Veteran contends that he has left ear hearing loss as a result of having been exposed to acoustic trauma during his period of active military service. As noted, the Veteran sustained in-service acoustic trauma. He is also in receipt of service connection for tinnitus. The medical evidence shows that the Veteran had left ear hearing loss as defined by VA at service entrance in July 1984. (See July 1984 service entrance examination report, reflecting left ear hearing of 40 dB at 4000 Hz.). Audiograms conducted in December 1984, January 1986, April 1987, and at service separation in November 1988, show left ear hearing loss of 50 dB at 4000 Hz. The remainder of the STRs are devoid of any further evidence of left ear hearing loss. The Veteran's ears were evaluated as "normal" at service separation in 1988. Thus, the above-cited in-service audiometric findings raise an aggravation component to the claim for service connection for left ear hearing loss--a theory that was not specifically addressed either by the Board in it is February 2009 remand or at an April 2009 VA audiological examination. As to the latter, the examining audiologist noted that the Veteran's current hearing loss was not likely the result of noise exposure in service, because there "were no standard threshold shifts noted when comparing audiometric results from the Veteran's entrance examination to (the) Veteran's exit examination." A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. A pre- existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). In VAOGCPREC 3-2003, VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116 (2003). A VA medical opinion is necessary to determine the etiology of any current left ear hearing loss, to include whether any pre- existing left ear hearing loss was aggravated by the Veteran's period of military service. See 38 U.S.C.A. § 5103A(d) (West 2002& Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Return the claims folder to the audiologist who conducted the April 2009 VA examination and its June 2010 addendum. If necessary, schedule the Veteran for an additional VA audiological examination to determine the etiology of his left ear hearing loss. The following considerations will govern the examination: a. The claims files must be made available to and thoroughly reviewed by the examiner in connection with the examination, and the examiner must acknowledge such receipt and review in any report generated as a result of the examination. b. The examiner should review the Veteran's statements and testimony, as well as service treatment records in conjunction with the examination. Any special diagnostic studies deemed necessary should be performed. c. After reviewing the records, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to the following questions: (1) On the basis of the clinical record, can it be concluded as medically undebateable that the Veteran's left ear hearing loss preexisted his entry into active military service? (2) If it is found as medically undebateable that left ear hearing loss did clearly preexist service, can it also be concluded as medically undebateable that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease?; and (3) If left ear hearing loss is not found to have so preexisted service, did it have its onset during active military service? (4) Explain the medical significance of the observation made in the June 2010 addendum as to no standard threshold shifts were noted when comparing audiometric results from the Veteran's entrance examination to (the) Veteran's exit examination. 4. In formulating the foregoing opinions, the VA audiological examiner is requested to comment on the following evidence: (i) July 1984 service entrance examination report, reflecting left ear hearing loss of 40 dB at 4000 Hz; (ii) Audiograms conducted in December 1984, January 1986, April 1987, and at service separation in November 1988, showing left ear hearing loss of 50 dB at 4000 Hz; (iii) March 2007 letter, prepared by David Ozimek, PA-C, stating that the Veteran's left ear hearing loss appeared to be secondary to acoustic trauma sustained during military service in 1984; and (iv) April 2009 VA examination report, containing the VA examiner's opinion that it was not as likely that the Veteran's "current hearing loss" was a result of noise exposure that he had incurred during military service. The examination report must include a complete rationale for all opinions and conclusions expressed. 2. After completion of the above and any additional development of the evidence that the RO/AMC may deem necessary, the RO/AMC should review the record and readjudicate the claim for service connection for left ear hearing loss on appeal in light of any additional evidence added to the record assembled for appellate review. If any benefit sought on appeal remains denied, the Veteran and his representative should be issued an appropriate supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the Veteran in the substantive development for his claim for service connection for left ear hearing loss. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. The Board, however, takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his service connection claim, including reporting for any scheduled VA audiological examination, is both critical and appreciated. The Veteran is also advised that failure to report for the scheduled audiological examination may result in the Board evaluating his service connection claim on the evidence of record. 38 C.F.R. § 3.655 (2010). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs