Citation Nr: 1234936 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 08-02 568 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 RO decision, which denied an application to reopen a previously denied claim for service connection for bilateral hearing loss disability. In August 2008, a local hearing was held before a hearing officer at the Lincoln, Nebraska, RO. In March 2010, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Lincoln, Nebraska, RO. Transcripts of these proceedings have been associated with the claims folder. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ)/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the hearing officer and VLJ fully explained the issue on appeal during the hearings. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the hearing officer and the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In July 2010, the Board reopened and remanded this issue for further development. FINDING OF FACT Bilateral hearing loss disability was not demonstrated to a compensable degree within one year of discharge from active duty, and the most probative evidence of record does not show bilateral hearing loss disability to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active service, nor may bilateral sensorineural hearing loss disability be presumed to have been incurred therein. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, and 3.385 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. An August 2007 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, relevant service treatment records and VA and private medical records are in the file. The Board concludes that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, 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. 38 C.F.R. § 3.159(c)(4)(i) (2011). The Veteran was provided a VA audiological examination for his bilateral hearing loss disability claim most recently in December 2011. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds this examination report and opinion to be thorough and complete. Therefore, the Board finds this examination report and opinion are sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A. Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 (West 2002). 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) (2011). 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) (2011). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include organic diseases of the nervous system, such as hearing loss disability, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). With respect to hearing loss disability, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2011). "[I]mpaired 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, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." The Board notes that the 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. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. B. Factual Background The Veteran contended that he currently experiences hearing loss disability as a result of his active duty service. Specifically, the Veteran asserted that he was exposed to noise in basic training and in the motor pool without proper hearing protection. He also asserted that he was exposed to loud, amplified music from his time with the band during service without proper hearing protection. A review of the Veteran's service treatment records revealed that the Veteran was noted in August 1965 as having otitis externa of the right ear. He was also noted in August 1965 as having bilateral otitis media. In June 1966, the Veteran complained of discomfort in the right ear, to include a blocked sensation. His external canal had a small amount of blood spots, which were caused from scratching. His right ear was irrigated. The canal showed mild irritation. A January 1963 summary report of examination for organic hearing loss reflected puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) X 0 (5) LEFT 10 (25) 5 (15) 5 (15) X 5 (10) Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. A December 1966 summary report of examination for organic hearing loss reflected puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 5 (15) 15 (25) 15 (20) LEFT 5 (20) 0 (10) 5 (15) 10 (20) 20 (25) As with the 1963 examination, the ASA standards recorded on the December 1966 examination report have been converted to ISO-ANSI standards and are represented by the figures in parentheses. In a January 1999 VA medical record, the Veteran reported a four-year history of bilateral hearing loss. It was noted that he had been a professional musician as an adult and played in the Air Force band. As a civilian, he continued as a musician but also had other jobs involving noise. The Veteran underwent a VA examination in February 2007. The examiner reviewed the claims file and noted that normal hearing was found at the Veteran's military enlistment and separation. The examiner noted that the Veteran was in the Air Force band and also was a heavy equipment mechanic in the military. In the civilian sector, he was a truck driver and a part-time musician. It was noted that the Veteran possibly had ear infections in the Air Force. Upon examination, the Veteran's auditory threshold was recorded as 40 decibels or greater at several frequencies bilaterally. The examiner concluded that the Veteran's sensorineural hearing loss would not be related to military noise exposure, as hearing was normal at military separation. The examiner noted that exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift. This disappears in 16 to 48 hours after exposure to loud noise. Impulse sounds may also damage the structure of the inner ear resulting in an immediate hearing loss. Continuous exposure to loud noise can also damage the structure of the hair cells resulting hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent hearing loss exists. Since damage is done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss. The examiner stated that the opinion was based on his clinical expertise as a licensed audiologist. The claims file contains an April 2010 private medical record from Dr. K.H, in which the Veteran was diagnosed with conductive bilateral hearing loss due to middle ear disorder. The physician noted that the Veteran showed her hearing evaluations that had been done through the military from the time he was first evaluated until discharge, and there were definite findings that showed the decreased hearing that developed over time. This physician noted that, after careful review of the complete medical record provided by the Veteran from VA, and given the Veteran's history and physical examination, it was more likely than not that his hearing loss was a direct result of his time spent in military service. With regard to the hearing loss, the acoustic trauma that resulted in the Veteran's service-connected tinnitus eventually led to the degree of hearing loss that he currently manifested. The physician noted that this was documented by audiology testing beginning with induction and continuing to the present time. The physician found that the fact that the Veteran had "normal for VA purposes" hearing at separation rather immaterial (if in fact the evaluation at his separation from the military was actually administered with quality or depth), given the pattern of loss from the time he entered the military until the present. The physician stated that, given her level of clinical training, experience, and expertise, with regard to medical diagnosis and treatment, she based all of her opinions on the review of the medical records, history, and physical examination that day that substantiate the Veteran's recall of events that resulted in the condition listed above. The Veteran underwent another VA examination in December 2011. The examiner reviewed the claims file. The Veteran complained of hearing loss related to military exposure in the 1960's. The examiner noted that the Veteran's specialty in the Air Force was Apr. Auto Rpmn. The Veteran reported that he was exposed to loud engines as a heavy equipment auto/truck mechanic. The Veteran reported that he suspected that his exposure to loud engines, diesel engines, earth moving equipment, and other large machines, as well as loud instruments in the band contributed to his hearing loss disability. Ear protection was reportedly not available or used. The Veteran reported that he worked as a truck driver for 40 years (off and on) and as a full-time musician (jazz pianist). Upon examination, the Veteran's auditory threshold was recorded as 40 decibels or greater at several frequencies bilaterally. The examiner determined that the Veteran's sensorineural hearing loss disability was not at least as likely as not caused by or a result of an event in military service. A diagnosis of conductive hearing disability was not rendered. The rationale provided for this opinion was that pure tone findings performed at enlistment and at separation were within normal limits bilaterally at 500 to 4000 Hertz. The examiner noted that hearing loss did not exist prior to service. The rationale provided for this opinion was again that pure tone findings performed at enlistment and separation were within normal limits bilaterally at 500 to 4000 Hertz. The examiner noted that, as per service records, the Veteran was treated for right otitis externa, August 16, 1965. This same examiner also completed a Disability Benefits Questionnaire Report in December 2011. The examiner determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that, as documented in a previous opinion by this clinician, as well as in audiological report of 2007 performed in Lincoln, Nebraska, it is less likely as not that hearing loss disability was a result of military service. This opinion was based on the fact that puretone findings performed at enlistment and separation were within normal limits bilaterally. Hearing loss disability documented since the Veteran separated from service did not exist at separation. Although, service records indicate that he was treated for otitis externa in 1965, normal pure tone findings at separation suggest that there was no impact on his hearing. Therefore, normal hearing at separation rules out hearing loss disability or any contributory maladies as it relates to the Veteran's hearing. C. Analysis As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated hearing loss disability of either ear to a compensable degree within one year of discharge from active duty. As such, service connection for hearing loss disability cannot be granted on a presumptive basis. With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2011). The Board notes that the RO conceded in-service noise exposure based on the Veteran's various assignments in the Air Force band and in close proximity to diesel engines as a mechanic. Additionally, the Board notes that the Veteran's service treatment records reflect complaints of and treatment for inner ear problems, to include otitis externa, earaches, and "blocking" in both ears. Further, the Board notes that, upon review of the claims file, Dr. K.H. diagnosed the Veteran in the April 2010 private treatment record with conductive bilateral hearing loss due to a middle ear disorder. This physician further found that, after careful review of the complete medical record provided by the Veteran from VA, and given the Veteran's history and physical examination today, it was more likely than not that his hearing loss was a direct result of his time spent in military service. The Board has considered the April 2010 private opinion but ultimately finds the December 2011 VA opinion to be the most probative opinion of record on the matter. With regard to the December 2011 VA opinion, a doctor of audiology reviewed the claims file, examined the Veteran, considered his assertions, noted the Veteran's in-service treatment for otitis externa, and provided a detailed rationale for his opinion. Moreover, the Board finds that the December 2011 diagnosis of bilateral sensorineural hearing is supported by the findings of the February 2007 VA examination which also diagnosed a sensorineural hearing loss. To the contrary, the April 2010 private opinion was not provided by an audiologist or doctor of audiology and was not based on an examination of the Veteran. Furthermore, Dr. K.H.'s diagnosis of conductive hearing loss disability is inconsistent with the finds rendered by the VA practitioners that actually conducted audiological examination of the Veteran in 2007 and 2011. These practitioners following comprehensive audiological testing of the Veteran diagnosed a sensorineural hearing loss disability. Moreover, K.H. did not specifically state how she came to the conclusion that the hearing loss experienced by the Veteran was conductive rather sensorineural hearing loss. As such, the Board finds the December 2011 VA opinion to be more probative with regard to the matter on appeal. Therefore, as the most probative medical opinion of record on the matter specifically indicated that the Veteran's hearing loss disability was not at least as likely as not caused by or a result of an event in military service, the Veteran's claim for service connection for hearing loss disability must fail on a direct basis. See Shedden, supra. In denying this claim, the Board has considered that the Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. In this case, the Board emphasizes that the Veteran's claim is not being denied solely on the basis that the criteria for hearing loss disability were not met upon separation from service but is being denied on the basis of the probative December 2011 VA medical opinion rendered by a qualified medical professional. The Board acknowledges the Veteran's contention that he has hearing loss disability as a result of his active duty. However, the most probative medical evidence of record does not support this contention. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, he is competent to describe being exposed to noise in service and difficulty hearing over the years. However, the Veteran, as a lay person has not been shown to be competent to offer opinions on complex medical questions, such as whether in-service noise exposure approximately 45 years ago has resulted in a current hearing loss disability or whether his perceived difficulty hearing was of such severity to have constituted a hearing loss disability for VA purposes since service. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). As such, the Board places more probative value on the December 2011 VA opinion from the doctor of audiology. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss disability, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs