Citation Nr: 1116970 Decision Date: 05/02/11 Archive Date: 05/10/11 DOCKET NO. 07-29 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1973 to August 1980, followed by time in the Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing at the RO in Waco, Texas in February 2010. This transcript has been associated with the file. With regard to the Veteran's April 2011 statement that the March 2011 supplemental statement of the case (SSOC) did not reference his tinnitus, the Board observes that the Vetearn's claim for tinnitus was denied in October 2008 and he did not perfect an appeal of this issue. As such, the only issue before the Board is entitlement to service connection for a left ear hearing loss disability. The case was brought before the Board in April 2010, at which time the claim was reopened and remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a new VA examination. The Veteran was afforded a VA examination in July 2010 for his left ear hearing loss disability claim. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The Veteran's current left ear hearing loss disability is not shown to be due to a disease or injury in service or to any incident of his military service and was not manifested within one year of service. CONCLUSION OF LAW The Veteran's left ear hearing loss disability was not incurred in or aggravated by military service, nor may hearing loss be presumed to be of service onset. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 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. Reasonable doubt 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); 38 C.F.R. § 3.102 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a letter sent to the Veteran in September 2006. This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in September 2005, October 2007, and July 2010 for his left ear hearing loss disability claim. These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. The examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 may also be granted for a chronic disease, such as hearing loss, when it is manifested to a compensable degree within 1 year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The term "active military, naval, or air service" includes "active duty, any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). Certain evidentiary presumptions, including the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service, are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 1111, 1112, 1153; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions, however, do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA, such as in this case. Paulson v Brown, 7 Vet. App. 466 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. 60 at 67 (1999) (vacated on other grounds sub nom. McManaway v. Gober, 4 Fed. App. 821 (Fed. Cir. January 22, 2001), citing Paulson, 7 Vet. App. at 469-70 (noting that, "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim"; see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). In such cases, the evidentiary burden is on the claimant to show that he became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to claims of service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Hensley at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. The report of a July 2010 audiology examination indicates the Veteran currently has a left ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The Veteran is alleging that his current hearing loss is due to exposure to loud noise in the military, including his work doing maintenance on airplanes. The Veteran's DD-214 indicated he was aviation maintenance technician. The Veteran's MOS in the Navy in the aviation engineering field has been identified as an occupation where there was a high probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). Accordingly, the Board concedes the Veteran was exposed to in-service noise trauma. Service medical records indicate the Veteran was provided audiometric evaluations both at entrance to and separation from service, in March 1973 and June 1980, respectively. At the Veteran's entrance examination in March 1973, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 5 15 15 15 At the Veteran's separation examination in June 1980, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 10 15 10 There is no evidence in the Veteran's separation examination that he complained of, or was diagnosed with, a left ear hearing loss disability. The Veteran was ultimately found to be qualified for separation. The Veteran underwent a private audiological examination, in July 1980, while he was still on active duty. At this examination, audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 5 15 5 The Board has reviewed the Veteran's service treatment records and notes that the Veteran did not complain of left ear hearing loss problems and was not diagnosed or treated for a left ear hearing loss disability at any point during active duty from March 1973 to August 1980. The Veteran was given audiological testing by his employer in March 1982. At this examination, audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 5 5 10 20 Again, the Veteran's hearing acuity was recorded as being improved at the 1000 and 3000 threshold frequencies in comparison to the July 1980 examination. It was also noted in both of these examinations that the workplace noise level was 85 decibels. At a Board hearing in September 1982, 2 years after separation from service, the Veteran testified that he suffered from hearing loss. When asked specifically about it, he reported that his right ear was the one that he had problems with. The Veteran testified that he could cover his right ear and hear things like a clock ticking, but if he covered his left ear, he could not hear things in the room. The Veteran did note occasional ringing in his left ear. The Board has also reviewed the Veteran's annual physical examinations while he was in the Reserves after separation from service. At the Veteran's annual examination in February 1984, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 5 10 15 The Veteran did not report any hearing loss at this examination and the examiner noted the Veteran's ears and eardrums were free of defects. At the Veteran's annual examination in March 1985, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 5 5 15 15 The Veteran checked "don't know" for if he was suffering from hearing loss. There is no diagnosis of hearing loss and the only note is that he currently wore hearing protection. The examiner noted the Veteran's ears and eardrums were free of defects. At the Veteran's annual examination in March 1987, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 5 15 15 Again the Veteran checked the "don't know" box for hearing loss. There is no further discussion of any hearing loss or a diagnosis of a left ear hearing loss disability. At the Veteran's annual examination in March 1988, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 10 15 20 The Veteran did not report any hearing loss at this examination and the examiner noted the Veteran's ears and eardrums were free of defects. At the Veteran's annual examination in March 1991, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 10 5 15 10 At this examination the Veteran checked the box for "don't know" in regards to hearing loss. The examiner reported no defects with the Veteran's ears and eardrums. At the Veteran's annual examination in April 1996, he underwent audiometric testing and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 15 10 25 30 At this examination the Veteran reported again that he "didn't know" if he suffered from hearing loss. There are no further reported symptoms or a diagnosis of a left ear hearing loss disability. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. In sum, the Veteran's service treatment records (1973 to 1980) do not reflect any evidence of hearing loss. Although a complaint of hearing loss comes from a March 1985 examination report during the Veteran's Reserve service, hearing loss was not diagnosed. Notably at the 1985 examination the Veteran did not distinguish if he was suffering from hearing loss in his left or right ear. The only comment made by the examiner was that the Veteran wore hearing protection, presumably at his job as an aircraft assembler. The examiner did not comment that the Veteran's active duty service caused this hearing loss. The Board observes that the first time the Veteran's left ear hearing loss acuity decreased to above 20 decibels was in April 1996, 16 years after his separation from service. The Veteran was afforded a VA examination in April 1998 where it was noted that he suffered from a left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran reported that he received limited to no treatment while in-service for this condition and that he believes it stemmed from his exposure to jet engines and generator equipment noise. He also reported that post-service he worked as an aircraft assembler and was exposed to general aircraft noise, such as high pitch drilling. He reported no recreational noise exposure, but that he wore ear protection for his current job. (Although it is noted in a February 2005 private treatment record the Veteran reported recreational noise including tractors, heavy equipment, power tools, and chain saws.) The April 1998 examiner did not opine that the Veteran's current left ear hearing loss disability was related to service. A January 1999 VA audiological evaluation indicated the Veteran's left ear hearing had a mild drop at the 4000 frequency threshold, but that all other test frequencies were within normal limits. A July 1999 VA treatment record indicated the Veteran was issued hearing aids for both his left and right ears. See also February 2006 VA treatment record. The July 1999 audiological examination noted no change from the last examination in January 1999. The Veteran was diagnosed with high frequency sensorineural hearing loss, with the right ear being worse than the left. The Board notes that the Veteran's private physician, Dr. K., provided a statement in November 2003 and September 2005 that the Veteran had exposure to loud noise while in the military. He also stated that it was consistent that the Veteran now had a hearing loss disability due to that noise exposure. Dr. K. stated he did not believe the Veteran had hearing loss due to his work at Lockheed Martin because he had some hearing loss before starting to work there in 1980. The Veteran was also afforded a VA examination in September 2005 where he reported a gradual decrease in hearing for his left ear. The Veteran was diagnosed with mild sensorineural hearing loss of the left ear. The Board notes that in his April 2007 statement the Veteran reported that this examiner told him his hearing loss was due to noise exposure in the military. However, in reviewing the examination report, there is no evidence the examiner opined that his left ear hearing loss disability was due to in-service noise exposure. The Veteran was also provided an audiological evaluation from March 2007. In this examination it is noted the Veteran's left ear hearing loss disability had worsened since his September 1997 examination. However, there is no evidence that the decrease is due to his active service. The Veteran has provided audiological examinations from his employers since the time he began there in 1980. The Board agrees with the Veteran's contention that his left ear hearing acuity has decreased over the 30 years that he has worked there. See e.g., October 1987, August 1990, and February 2006 employer audiological examinations. The Veteran was afforded a VA examination in October 2007 where the examiner noted the Veteran had mild to moderate sensorineural hearing loss in the left ear. She further indicated that the results from that examination were essentially the same as the results from the September 2005 VA examination. She did not relate the Veteran's left ear hearing loss disability to service. At the Veteran's February 2010 Board hearing he testified that he believed his left ear hearing loss disability was due to his noise exposure while in-service. He indicated that although he has worked for the last 30 years with airplanes, he used hearing protection. He further indicated that he was not around jet engines anymore because he was working in a different area called the fuel rack. He also reported some dissatisfaction with the testing at the VA, especially at the Dallas VA Medical Center (VAMC), because the volume on the tests were turned up so loud he could hear even with the headset taken off. The Veteran indicated in his April 2011 statement that the judge at this hearing granted him service connection for a left ear hearing loss disability. However, none of the issues discussed at this hearing were decided at the time of the February 2010 hearing and instead were adjudicated in the April 2010 Board decision. The Veteran was also afforded a VA examination in July 2010, at the Temple VAMC, for his left ear hearing loss disability. At this examination the Veteran complained that he had been exposed to loud noises while in the military and his hearing had decreased since separation from service. After reviewing the Veteran's service treatment records, in August 2010 the examiner determined that it was less likely than not that his left ear hearing loss disability was related to service. The examiner's rationale was that there was no evidence of a significant threshold shift for his left ear during active duty from March 1973 to September 1980, although there was a significant threshold shift for his right ear during this time. Furthermore, the Veteran's left ear hearing loss disability has been noted since he began working at Lockheed Martin, post-service. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it 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). In this situation, the Board notes that although Dr. K.'s November 2003 and September 2005 statements reported that the Veteran started at Lockheed Martin with a hearing loss disability, he did not state whether it was a single or bilateral hearing loss disability. The importance of this is that the Veteran's right ear hearing loss disability was worse than his left ear at the time he separated from service. However, the service treatment records indicate that only at one threshold frequency, 1000, did the Veteran's left ear hearing decrease over his time in-service. The other levels were recorded at the same levels, or better than when he started service. See March 1973 entrance and June 1980 separation examinations. It is also notable that while a decrease did occur, the findings still do not represent a hearing loss disability under the regulation or Hensley. Dr. K. did not acknowledge that when the Veteran separated from service his hearing was almost essentially the same as it was when he entered service. The July 2010 VA examiner did acknowledge this difference and noted that the Veteran's right ear hearing did suffer a decrease over the Veteran's time in-service. Dr. K. also does not acknowledge that the Veteran's hearing has decreased since he has worked at Lockheed Martin for the past 30 years. As such, the Board gives more weight to the VA examiner's report which concludes the Veteran's left ear hearing loss disability is not related to service as it is based on a thorough review of the Veteran's medical history and accounts for any inconsistencies in the record. The Board acknowledges that the Veteran believes his hearing got worse after service, when he was still in the Reserves, and as such, he should be granted service connection. See February 2009 VA Form 9. In the instant case, there is no evidence substantiating that the Veteran's hearing loss of the left ear became disabling as a result of an injury or disease incurred in or aggravated during a period of ACDUTRA or INACDUTRA. In fact, a review of his Reserve records shows that his pure tone thresholds were consistently below 20 decibels. See e.g., March 1985, March 1988, March 1991 annual physical records. With respect to the Veteran's own contentions, a layperson is generally not capable 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) citing Espiritu, supra. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Id. However, in this case, the Veteran's contentions are outweighed by the lack of probative medical evidence linking the Veteran's left ear hearing loss disability to service, as well as evidence showing decreased hearing in his left ear after post-service noise exposure. Further, as there is no competent evidence of record of a left ear hearing loss disability manifested to a compensable degree within one year of service discharge, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). In sum, the Board finds that there is no credible lay or medical evidence of a left ear hearing loss disability that manifested during active service and continued thereafter. There is also no competent evidence of a left ear hearing loss disability which manifested to a compensable degree within one year of service separation. The Board concludes service connection must be denied. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim of service connection for a left ear hearing loss disability must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left ear hearing loss disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs