Citation Nr: 1119519 Decision Date: 05/19/11 Archive Date: 05/27/11 DOCKET NO. 10-21 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1945 to July 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for hearing loss. This appeal was previously before the Board and the Board remanded the claim in July 2010 for additional development. The case has been returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Hearing loss was initially shown many years following active service, and there is no competent medical evidence establishing that hearing loss is related to active service, including noise exposure therein. CONCLUSION OF LAW Hearing loss was not incurred in or aggravated by active service, nor may sensorineural hearing loss be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In an August 2008 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, the report of a VA examination, VA treatment reports, and a private treatment report. Pursuant to the Board's July 2010 remand, the Appeals Management Center (AMC) requested that the Veteran provide the necessary release forms to authorize the release of medical records from Audiology Associates of New Jersey and from Dr. Lacher, as well as any other private medical providers who have treated him for his hearing loss. The Veteran responded by providing release forms for Audiology Associates of New Jersey and Dr. Lacher, who the Veteran noted had died around 1998, although the practice was taken over by another doctor. In September 2010, the Appeals Management Center (AMC) requested that these providers send all treatment records for the Veteran pertaining to his hearing loss. In November 2010, VA received a response from Audiology Associates of New Jersey indicating that the Veteran is not a patient there. However, in an October 2010 statement, the Veteran related that he had erred in naming Audiology Associates of New Jersey as a treatment provider. Further, while VA has not received a response from the practice of Dr. Lacher, in October 2010 the Veteran also submitted a treatment report from that office dated in 1998. These events were noted in the March 2011 supplemental statement of the case. In addition, a VA examination was conducted and an opinion with rationale was provided. Accordingly, there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for a VA examination, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical 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 competent 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); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has hearing loss as a result of noise exposure without hearing protection on a ship during active service, including from weapons being fired. He claims that treatment providers have told him that he has permanent hearing loss due to naval gunfire. After reviewing the evidence of record, the Board finds that service connection for hearing loss is not warranted. Service treatment records are negative for complaints or findings of hearing loss. At the June 1945 entrance examination, the Veteran's ears were evaluated as normal and hearing was reported to be 15/15 in both ears. Further, the whispered voice test during the July 1946 separation examination had a result of 15/15, bilaterally. VA treatment records show that the Veteran underwent an initial audiological evaluation in May 2008. The Veteran reported a history of hearing loss for many years. He indicated that while in the Navy he used rifles, performed repairs on weapons, and was on deck often when the weapons were being fired. He did not have hearing protection provided during service. He reported that recreationally, he had used some power tools and a lawnmower without hearing protection. He had worked as a carpet installer and then moved up into management in the carpet business, which was a relatively quiet job. Audiological testing revealed right ear hearing within normal limits through 1000 Hertz and mild to severe sensorineural hearing loss thereafter. The left ear was within normal limits through 1500 Hertz with moderate to severe sensorineural hearing loss thereafter. Speech recognition scores were reported to be good, with 92 percent on the right and 90 percent on the left during taped W-22 word lists. The Veteran was fitted with hearing aids in August 2008. The Veteran underwent a VA audiological examination in November 2008, during which the claims file was reviewed. The Veteran reported that he served in the U.S. Navy as a carpenter and his duties were to maintain and repair all doors, hatches, fireplugs, and equipment pertaining to the watertight integrity of the ship. He was often on deck during gunnery practice exposing him to weapons. Hearing protection was not issued. With regards to occupational noise exposure, the Veteran worked as a carpenter on and off for six years with minimal noise exposure to hammers. Most of his career was in the retail business not subjected to excessive noise. Recreational noise exposure was denied by the Veteran. Upon physical examination, audiological testing revealed pure tone thresholds of 40, 30, 35, 70, and 75 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, in the right ear. In the left ear, puretone thresholds were 30, 20, 50, 70, and 80 decibels at the same frequencies, respectively. The speech recognition score for the Maryland CNC word list was 92 percent in the right ear and 94 percent in the left ear. The diagnosis was bilateral mild to severe sensorineural hearing loss from 500 to 4000 Hertz. The examiner noted that the Veteran's induction physical examination dated in June 1945 and his discharge physical examination dated in July 1946 revealed a passed forced whisper test result of 15/15 in both ears. The examiner stated that the whisper test is not ear or frequency specific and does not rule out a mild or high frequency hearing loss. It is indicative of at least normal low frequency hearing sensitivity in at least the composite better ear. The examiner also observed that the service treatment records were negative for complaints or treatment of hearing loss. The examiner opined that hearing loss is less likely as not (less than 50/50 probability) caused by or a result of noise exposure during military service. The rationale for the opinion was that there is no evidence documenting hearing loss in service or shortly thereafter, and that the current degree of hearing sensitivity would not have passed the forced whisper test administered at military discharge. The examiner also explained that presbycusis should be a contributing factor in the Veteran's overall hearing loss. In support of his claim, in October 2010 the Veteran submitted a private audiological treatment record dated in July 1998. Although the graph is uninterpreted, it appears to show bilateral hearing loss. Speech discrimination scores were reported to be 92 percent, bilaterally. No opinion as to the etiology of that hearing loss was noted. After review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hearing loss. While the Veteran has a current diagnosis of hearing loss, the only medical opinion of record fails to link the Veteran's current hearing loss to active service, including noise exposure therein. The November 2008 examining audiologist reviewed the Veteran's claims file, recorded the history of noise exposure provided by the Veteran, and examined the Veteran. The audiologist determined that hearing loss is less likely as not (less than 50/50 probability) caused by or a result of noise exposure during military service. The examiner provided adequate rationale for the conclusion. There is no medical opinion to the contrary. To the extent the Veteran contends that his hearing loss is related to noise exposure during active service, he is not, as a layperson, qualified to render a medical diagnosis or an opinion concerning the etiology of hearing loss. In this regard, medical testing is required to establish the presence of hearing loss, and medical expertise is required to determine the etiology of such. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion on such matter is not competent medical evidence. Further, while he claims that he has been told by treatment providers that his current hearing loss is related to noise exposure during military service, neither the VA audiology treatment records, the VA examination report, or the private treatment report submitted by the Veteran reflect such opinion or provide the requisite medical evidence of a nexus between the Veteran's current hearing loss and active service. The Court has held that a veteran's lay statements relating what a medical professional told him, filtered as they are through a layman's sensibilities, are simply too attenuated and inherently unreliable to constitute "medical" evidence to support a claim. See Warren v. Brown, 6 Vet. App. 4 (1993). Therefore, the Veteran's assertions in this regard, standing alone, do not provide a basis on which to grant his claim. In summary, there is no medical evidence of hearing loss in service or for more than 50 years following discharge from service. In addition, there is no competent medical opinion linking the current hearing loss to the Veteran's military service, to include noise exposure therein. Likewise, there is no competent evidence that any sensorineural hearing loss became manifest to a compensable degree within one year from the date of termination of active service. Thus, the preponderance of the evidence is against a grant of service connection for hearing loss. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for hearing loss is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs