Citation Nr: 1116914	
Decision Date: 05/02/11    Archive Date: 05/10/11

DOCKET NO.  09-40 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Rochelle E. Richardson, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from July 1990 to October 1992.  He also served in the West Virginia National Guard.

This appeal to the Board of Veterans' Appeals (Board) is from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the Veteran's claims for service connection for bilateral (i.e., right and left ear) hearing loss and tinnitus.  He initiated an appeal of both claims by submitting a timely notice of disagreement (NOD) in April 2009.  And in another decision since issued in October 2009, the RO granted his tinnitus claim and assigned a 10 percent rating for the disability retroactively effective from August 29, 2008, the date the RO determined he had submitted an informal claim for this condition.  There is no higher rating for tinnitus.  38 C.F.R. § 4.87, Diagnostic Code 6260 (2010).  See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  And since he did not appeal that effective date, that claim is no longer in dispute.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues of the rating and effective date assigned for the service-connected disability).

In a statement of the case (SOC) also issued in October 2009, however, the RO continued to deny the bilateral hearing loss claim.  Later that month, the Veteran submitted a substantive appeal (VA Form 9), thereby completing the steps necessary to perfect his appeal of this remaining claim to the Board.  See 38 C.F.R. § 20.200 (2010).


FINDING OF FACT

The probative, i.e., competent and credible, medical and other evidence of record shows the Veteran does not have sufficient hearing loss in either ear to be considered a ratable disability by VA compensation standards.


CONCLUSION OF LAW

The Veteran does not have a bilateral hearing loss disability that was 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, 1131, 1137 (West 2002); 
38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Duties to Notify and Assist

Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100, et seq.  See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  That is, by way of a letter dated in October 2006, the RO advised the Veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing.  38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate his claim.  See 73 FR 23353 (Apr. 30, 2008).

It equally deserves mentioning that the October 2006 letter apprised the Veteran of the downstream disability rating and effective date elements of his claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Consider, as well, that the RO issued that October 2006 VCAA notice letter prior to initially adjudicating his claim in March 2009, the preferred sequence, so there was no timing error in the provision of that VCAA notice since it preceded the initial consideration of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II).


And as for the duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, private medical records, and VA medical records - including the report of his January 2009 VA Compensation and Pension Examination (C&P Exam) addressing the severity of his bilateral hearing loss and its etiology.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  Thus, as there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met.  38 U.S.C.A. § 5103A.

II.  Entitlement to Service Connection for Bilateral Hearing Loss

Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Stated somewhat differently, direct service connection generally requires:  (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in- service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Organic diseases of the nervous system, such as sensorineural hearing loss, will be presumed to have been incurred in service if manifested to a compensable degree (of at least 10-percent disabling) within one year after service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection is established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or a disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation.  Savage, 10 Vet. App. at 495-97.  For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

Where the determinative issue involves medical causation or medical diagnosis, there generally must be competent evidence to the effect that the claim is plausible; lay assertions regarding this generally are insufficient.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  A layperson generally is incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997). 
See also Bostain v. West, 11 Vet. App. 124, 127 (1998).

There are exceptions to this general rule, however.  Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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).

So medical evidence is not always or categorically required in every instance when the determinative issue involves either medical etiology or diagnosis, but rather such issue may, depending on the facts of the case, be established by competent lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


Turning now to the facts of this particular case.  As explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent evidence confirming the Veteran has the claimed disability.  Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim).

Concerning claims for hearing loss, in particular, the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).

But according to VA standards, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds 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.

So a Veteran may have hearing loss, just insufficient hearing loss to meet these prescribed VA standards to be considered an actual ratable disability.

In support of his claim, the Veteran has submitted a September 2008 audiological report from a private physician, M.R., M.D.  The report indicates the Veteran mentioned noticing a decreased hearing ability.  The examiner's review of the audiogram revealed symmetric slight high frequency sensorineural hearing loss with speech reception thresholds (SRTs) of 10, bilaterally, and 100 percent speech discrimination, bilaterally.  The audiogram report also indicates the Veteran's pure tone averages were 8 and 12 decibels, right and left, respectively.  Based on these results and a clinical examination, the examiner's assessment was high frequency sensorineural hearing loss, symmetric and mild in nature.

The audiogram contained in Dr. M.R's report is in graph format only, without a precise numerical indication of the pure tone thresholds.  In Kelly v. Brown, 7 Vet. App. 471, 474 (1995), the Court held that it was unable to interpret the results of such a graph because this would constitute a factual finding it is precluded from making.  However, the Court criticized the Board for not discussing the speech recognition results in that report.  Id.  Here, the Board finds the September 2008 audiogram provided with Dr. M.R.'s report appears sufficiently legible and capable of interpretation and, in any event, does not change the outcome of this case.

The September 2008 audiogram provided by Dr. D.M., indicates the Veteran's pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
10
10
LEFT
5
10
5
10
15

Therefore, Dr. M.R.'s report, including the audiogram, does not establish the Veteran has hearing loss in either ear sufficient to be considered a ratable disability according to VA standards.  That is, the report and audiogram do not indicate that the auditory thresholds in any of the relevant frequencies is 40 decibels or greater, or that the auditory thresholds for at least three of these frequencies are 26 decibels or greater, or that the Veteran has speech recognition scores less than 94 percent.  See again 38 C.F.R. § 3.385.

Even though Dr. M.R. apparently did not have access to the Veteran's claims file, this September 2008 report is thorough, well-reasoned, and based on objective clinical evaluation and the Veteran's pertinent history.  Hence, the findings expressed in this report have the proper foundation and predicate and, therefore, are entitled to significant probative weight.  See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008) (holding that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion").

Furthermore, the findings expressed in Dr. M.R.'s September 2008 report are similar to those expressed in the report of the January 2009 VA C&P Exam.

The January 2009 VA C&P Exam report provides that the Veteran's pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
15
15
LEFT
10
15
15
15
30

His speech recognition scores were 96 percent, bilaterally.

Consequently, the results of the January 2009 VA C&P Exam also fail to establish the Veteran has sufficient hearing loss in either ear to be considered a ratable disability by VA standards, i.e., according to the requirements of 38 C.F.R. § 3.385.

In his April 2009 NOD and October 2009 substantive appeal (on VA Form 9), the Veteran expressed his disbelief that VA could conclude his hearing loss is not related to his military service, especially given the circumstances of his service and the type and extent of noise exposure he experienced.  So, he added, there is no other possible explanation ("rationale") for his hearing loss, also pointing out that a medical insurance provider determined he has hearing loss.

What the Veteran is misunderstanding, however, is that his claim is not deficient because he did not have significant noise exposure during his military service.  Indeed, to the contrary, VA already acknowledged that he did have significant noise exposure during his military service by granting service connection for his tinnitus.  See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994) (indicating tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking.")  

Because of the inherently subjective nature of tinnitus, even a layman such as him is considered competent to establish having experienced these observable manifestations since the noise exposure in service.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation").

But his hearing loss is another matter altogether because, although he is equally competent to say he has experienced difficulty hearing, such as in conversations or whatever, he has to have sufficient hearing loss according to the threshold minimum requirements of § 3.385 to be considered a ratable disability by VA standards.  So, as explained, he may indeed have some hearing loss - as, for example, evidenced by the 30-decibel loss in his left ear at 4,000 Hz that was shown during his January 2009 VA C&P Exam, but still insufficient hearing loss to meet these requirements of § 3.385 to have a ratable disability for VA compensation purposes.  Therefore, inasmuch as the results of his audiograms - the required objective measure of the extent of his hearing loss, do not show he has sufficient hearing loss in either ear to meet the requirements of this VA regulation (38 C.F.R. § 3.385), there is no current ratable hearing loss disability to attribute to the noise exposure he admittedly experienced during his military service.  In other words, the cause or etiology of his hearing loss is inconsequential unless it is first established he has sufficient hearing loss, i.e., a hearing loss disability according to the § 3.385 requirements.  His mere lay testimony that he has hearing loss, even if true, so credible, is not also competent to show he has sufficient hearing loss according to this VA regulation to be considered a ratable disability because this determination necessarily is based on the results of objective data obtained from testing his hearing acuity, as reflected in the audiograms.  So his lay testimony concerning this is not ultimately probative, especially in comparison to the objective medical findings.  38 C.F.R. § 3.159(a)(1) and (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")).


Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent medical evidence to exist, unless, as mentioned, it is one of the disabilities like tinnitus (but not hearing loss) that may be established with lay evidence, instead.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Here, unfortunately, the Board finds the probative medical and other evidence of record does not establish the Veteran has sufficient hearing loss in either ear to meet VA's standards for disability compensation purposes.  Hence, he has failed to satisfy his threshold preliminary evidentiary burden of establishing he has current hearing loss disability.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability).  But see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).  It has never been established since the filing of this claim that the Veteran has sufficient hearing loss in either ear to satisfy the § 3.385 requirements, so he has never shown he has a ratable disability according to these standards.

Absent proof he has this required current disability - hearing loss by VA standards, the Board need not address the downstream question of whether this, for all intents and purposes, nonexistent disability is related to his military service, and in particular to the noise exposure he experienced in service (like his tinnitus is).  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

The Board is sympathetic to the Veteran's claim and recognizes his honorable and very meritorious service.  However, the Board is bound by the law, and its decision is dictated by the relevant statutes and regulations.  38 U.S.C.A. § 1725.  The Board does not have authority to grant benefits simply because it might perceive the result to be equitable.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  "No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).

For these reasons and bases, the preponderance of the evidence is against the Veteran's claim, in turn meaning there is no reasonable doubt to resolve in his favor, and that his claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


ORDER

The claim for service connection for bilateral hearing loss is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs