Citation Nr: 1121962 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 09-47 110 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. McCarl, Law Clerk INTRODUCTION The Veteran had active service from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 RO rating decision that denied service connection for bilateral hearing loss. FINDING OF FACT The Veteran's bilateral hearing loss disability is not shown to have started during service or for many years thereafter; the preponderance of the evidence is against a finding that the current hearing loss disability is related to service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Here, the RO sent correspondence in October 2008 and a rating decision in February 2009. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the Veteran with regard to the evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. The case was last readjudicated in an August 2009 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, or relevant evidence. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for a "chronic disease," such as sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. One requirement for service connection is the current existence of the claimed disability. With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the current existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service. However, a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). 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 medical 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). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 U.S.C.A. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this instance, the Veteran contends that he has bilateral hearing loss that is related to service. The Veteran specifically alleges that he was exposed to field artillery noise during basic training on the rifle range as well as during his service in Vietnam, and that this noise exposure caused his bilateral hearing loss. The Veteran's service treatment records indicate that at the time of his April 1969 induction examination, no defects were noted with respect to his ears. Additionally, an audiological evaluation showed pure tone thresholds in the Veteran's left ear of 0, 0, 0, and 5 decibels at 500, 1000, 2000, and 4000 Hertz, respectively. Pure tone thresholds in the Veteran's right ear were 5, 0, 0, and 15 at the same frequencies. The Veteran's service treatment records do not show treatment or a diagnosis of any hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. The Veteran did not undergo a full separation examination, and thus there are no audiological evaluations at the time of his separation in February 1971. On a DA Form 1811, Physical and Mental Status on Release from Active Service, dated February 7, 1971, the Assistant Adjutant General assessed the Veteran's physical profile at the date of separation as 111121. In this portion of the form, the Veteran is assigned a numerical designation 1, 2, 3, or 4, to rate the Veteran's capacity in six areas reviewed by this Military Physical Profile Serial System. The Physical Profile Serial System is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered. Since the analysis of the individual's medical, physical, and mental status plays an important role in assignment and welfare, the military takes great care in executing the functional grading. In developing the system, the functions have been considered under six factors designated "P-U-L-H-E-S." The fourth factor "H" is for assessing capacity of hearing and ears. This factor concerns auditory acuity and disease and defects of the ear. On this form, the Veteran was given the rating for the highest level of functioning, a "1" in the 4th category, "H" for hearing, on February 7, 1971. There is also no medical evidence of record of hearing loss within the year after service as required for a presumption of service connection. The first post-service medical evidence of record of any hearing loss was in January 2008, decades after the Veteran's period of service. This lengthy period without treatment for hearing loss is evidence against a finding of service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). A January 2008 VA medical progress report related an assessment that included hearing loss. The examiner recommended continued use of hearing aids. In an August 2008 VA nursing triage note, the examiner reported the Veteran was using hearing aids. A diagnosis was not provided at that time. An additional August 2008 medical progress note indicated an assessment that included hearing loss. The examiner recommended continued use of hearing aids. The Veteran underwent a VA audio examination in December 2008. The examiner reviewed the Veteran's claim file, his service medical treatment records, and his VA records. The examiner noted the Veteran stated his chief complaint was tinnitus and that his greatest difficulty was in localizing sound. The examiner also noted the Veteran's statements regarding his history of noise exposure, including noise exposure from field artillery during military service. The Veteran reportedly did not wear hearing protection at this time. Additionally, the examiner noted the Veteran stated he had occupational noise exposure from coal mine drilling from 1971 to 1986, and when working in construction for an additional eight years. It was noted that he wore hearing protection during both post-service activities. With respect to pertinent family history relating to hearing loss, the examiner noted the Veteran claimed he was hit in the head with a bucket shaft after basic training, but had no residual effects. The audiological evaluation results were indicative of hearing loss in both ears as defined by 38 C.F.R. § 3.385. In relevant part, the Veteran was diagnosed with sensorineural hearing loss and noise-induced hearing loss. The examiner provided a medical opinion that does not favor the Veteran's claim. In pertinent part, the medical examiner opined that the hearing loss was less likely as not (less than 50% probability) caused by or as a result of military noise exposure. The examiner provided the rationale that "[t]he patient has had a great deal of occupational noise which is more than 50% the cause of the present hearing loss." Report of VA Examination, December 2008, page 4. The Board observes that the probative medical evidence does not suggest that the Veteran's current bilateral hearing loss is related to his period of service. In fact, the probative medical evidence provides evidence against this finding. In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (hereinafter Court) has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, the determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the competent medical evidence of record is against the Veteran's claim. The only evidence favoring the claim is found in the Veteran's statements. Essentially, the Veteran contends that he began experiencing hearing loss during service, not during his later occupations as a coal mine driller and construction worker. He contends that his difficulty in hearing began during basic training on the rifle range, and again occurred during his service in Vietnam when exposed to mortar and artillery noise. The Board observes that the Veteran has reported his belief that his bilateral hearing loss is due to noise exposure that took place during his period of service. While the Veteran is competent to report that he had hearing problems during his period of service, or that he has had hearing problems for the last few years, he is not competent to diagnose the cause of his current bilateral hearing loss as related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, when a layperson is reporting a contemporaneous medical diagnosis, or when the lay testimony is describing symptoms at the time which support a later diagnosis by a medical professional). There is no evidence on file to show that the Veteran has medical training sufficient to allow him to provide a competent medical diagnosis of his condition during service or a competent medical nexus opinion that his current bilateral hearing loss had its onset with noise exposure more than 35 years earlier. Additionally, the Veteran's statements describing hearing loss during and immediately after service are not supported by contemporaneous medical findings. The Board finds it pertinent that the Veteran's hearing was assessed with the highest rating of "1" on the February 1971 DA Form 1811, Physical and Mental Status on Release from Active Service. Likewise, the Veteran's reports of hearing loss after service and his belief that the current hearing loss disability is related to service are not supported by medical professional opinions. To the contrary, as shown in his December 2008 VA audio medical exam (discussed above), the VA examiner's medical opinion was that the Veteran's bilateral hearing loss was not due to active service, but rather attributable to a "great deal of occupational noise," which the examiner determined to be the likely cause of the present hearing loss. The examiner gave that opinion after reviewing the claims file, taking into account the Veteran's history and his recorded medical history, and considering the audiological test results. The examiner gave a full and reasonable explanation for the rationale behind his opinion. There is no medical evidence of record countering this opinion. The Board has considered the Veteran's assertion in support of his claim that he attempted to file a claim for service connection for hearing loss immediately after separation from service. The Board notes that with his February 2009 Notice of Disagreement (NOD), the Veteran submitted a copy of VA Form 21-526e, Application for Compensation or Pension at Separation from Service, dated February 7, 1971. This form is not date stamped, and it is not found elsewhere in the claims file. The Veteran alleges that he attempted to file a claim for hearing loss immediately after separating from service, and that this form is evidence that should support his assertion that he had hearing loss due to service at the time of separation. The Board observes, however, that there is no indication on this form (such as a date stamp) or in any other medical records or procedural records on file that would indicate VA ever previously received this form attempting to assert a claim for service connection for hearing loss. Simply put, there is no corroborating evidence to support the Veteran's contention that he successfully filed a claim for hearing loss in February 1971. Even assuming arguendo that the Veteran did submit this VA Form 21-526e to VA in 1971, it could only show, at most, that the Veteran believed he had hearing problems back in 1971. The claims form is not in and of itself evidence that the Veteran did in fact have hearing loss or a hearing loss disability back in 1971. The Board notes that the DA Form 1811, Physical and Mental Status on Release from Active Service, found in the Veteran's service treatment records and discussed above was also dated February 7, 1971, the same date as the one on the claim form the Veteran submitted in 2009. As discussed above, this document shows that the Assistant Adjutant General found the Veteran's hearing was rated a "1" on this date. This signed DA Form 1811, already on file with the service treatment records, showing that the Veteran's hearing was given the highest possible assessment of "1" on February 7, 1971, directly opposes the Veteran's assertion that he had hearing problems back in 1971. As the DA Form 1811 is without document contemporaneous with the Veteran's period of service, and it was filled out by the Assistant Adjutant General (one competent to assess the exiting servicemen's physical profiles), the Board has to afford greater weight to the DA Form 1811 than to the Veteran's claim and recently submitted VA Form 21-526e. The Veteran's hearing loss disability was not shown by any objective evidence in service or at separation. In fact, the official documentation from 1971 indicated that he had no hearing loss disability at that time. The weight of the competent evidence demonstrates that the Veteran's bilateral hearing loss disability began decades after his period of service and that it was not caused by any incident of service. This condition was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs