Citation Nr: 1237173	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  10-25 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Entitlement to service connection for left ear hearing loss disability.

2. Entitlement to service connection for right ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to August 1971.

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Chicago, Illinois Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for hearing loss.

There is sufficient evidence to adjudicate the issue of service connection for right ear hearing loss disability, but additional evidence should be sought on the issue of service connection for left ear hearing loss disability. The Board therefore is addressing the issues for each ear separately.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either are duplicative of the evidence in the paper claims file or are irrelevant to the issue that the Board is deciding at this time.

The issue of service connection for left ear hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

On testing of hearing in the Veteran's right ear, the auditory thresholds in the frequencies 500, 1000, 2000, 3000, 4000 Hertz are each less than 40 decibels, the auditory thresholds are 26 decibels or greater in fewer than three of those frequencies, and speech recognition scores are greater than 94 percent.

CONCLUSION OF LAW

The Veteran does not have right ear hearing loss disability for VA compensation purposes. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (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. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. 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) (2012).

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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that 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). Insufficiency in the timing or content of VCAA notice is harmless, however, 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).

The RO provided the Veteran with VCAA notice letters issued in January 2008 and February 2010. Those letters the addressed the information and evidence necessary to substantiate a claim for service connection, and informed the Veteran how VA assigns disability ratings and effective dates.

With respect to the claim for service connection for right ear hearing loss, VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide that claim. The Veteran has had a VA medical examination that adequately addressed that claim. He had a hearing at the RO before a Decision Review Officer (DRO) in November 2009, and a Travel Board hearing at the RO before the undersigned Veterans Law Judge in April 2011.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim that the Board is adjudicating at this time, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument and reporting for examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he 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 nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of that claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Right Ear Hearing Loss Disability

The Veteran essentially contends that noise exposure during service caused current right ear hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including neurological disorders such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection for hearing loss is regulated at 38 C.F.R. § 3.385, which provides that:

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, or 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.

In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted 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." 5 Vet. App. at 159. The Court explained that:

[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.

5 Vet. App. at 160.

Establishing 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 disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). 

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (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").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107.

Before the Veteran entered active duty, he had a medical examination in June 1967 in conjunction with his participation in a Reserve Officers' Training Corps (ROTC) program. Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Standards Organization (ISO) units to facilitate comparison of results. On audiometric testing of the Veteran in June 1967, with the results converted from ASA units to ISO units, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15

10
LEFT
20
15
15

15

No thresholds were reported for the 3000 Hertz frequency. No speech recognition ability testing was reported.

The Veteran was examined for entrance into active duty in August 1968. Although that examination occurred later than the November 1, 1967 date from which the use of ISO units can be assumed, the examination report contains a stamped indication that the audiological evaluation was in ASA units. Converted to ISO units, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
5
0
LEFT
10
5
5
15
40

No speech recognition ability testing was reported.

The Veteran's service records show that he served in Vietnam from November 1970 to August 1971. On examination in August 1971 for separation from service, the examiner only performed whispered voice testing. There is no report of audiometric testing or speech recognition ability testing.

The Veteran submitted in 2007 his claim for service connection for hearing loss. In statements in support of his claim, he wrote that in 1971, soon after his separation from service, he had a pre-employment examination for a private employer. He stated that the examiner told him that he had lost 50 percent of the hearing in his left ear.

In July 2008, the Veteran's former spouse wrote that she was married to the Veteran from the mid 1960s, before he entered service, through the 1990s. She stated that after the Veteran returned from Vietnam in 1971, she and their children noticed that his hearing was substantially reduced, that he had difficulty hearing, and that he favored his right ear when using the telephone.

In a February 2009 VA audiology consultation, the Veteran reported that during service he was exposed to noise on the firing range, and experienced tinnitus at that time. He indicated that he was told during service that he had a 50 percent hearing loss. He denied post-service occupational or recreational noise exposure. On audiological testing, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
20
30
LEFT
15
20
40
65
60

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear. The audiologist found that the Veteran had asymmetric sensorineural high frequency hearing loss.

In a May 2009 statement, the Veteran noted that he was exposed to gunfire and loud noises during his service in Vietnam. He expressed his belief that his hearing loss originated from that noise exposure.

In November 2009, B. B. wrote that he had been friends with the Veteran since early 1968. Mr. B. recalled that after the Veteran's separation from service in 1971, Mr. B. noticed that the Veteran had trouble hearing, especially in noisy settings.

The Veteran had a November 2009 hearing at the RO before a Decision Review Officer. The Veteran reported that during service he was a transportation officer. He indicated that he had rifle training during basic training, and again after arriving in Vietnam for a tour there. He recalled that with rifle training he experienced ringing in his ears that later went away. He stated that in Vietnam he was exposed to noise from occasional incoming mortar fire. He indicated that he also worked around and rode in helicopters. He recalled that in an examination for a job that he had soon after service, the examiner told him that he had a 50 percent hearing loss on the left side. He stated that over the years he continued to experience difficulty hearing, especially when there was background noise.

In March 2010, M. A., a brother of the Veteran, wrote that he did not notice the Veteran having difficulty hearing before his service, but that when the Veteran returned from service in 1971 he had a noticeable loss of hearing, with difficulty hearing normal conversation.

The Veteran had a VA audiology examination in March 2010. He reported that after his service his family noticed that he could not hear well. He stated that he functioned in his work as a salesman, but always favored his right ear. On the 2010 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
25
20
25
LEFT
10
15
40
65
60

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 percent in the left ear. The examiner found that the hearing in the Veteran's right ear was normal, and that he had sensorineural hearing loss in the left ear.

In a May 2010 statement, the Veteran indicated that he had some hearing loss upon entry into service in 1968, but that his service in Vietnam resulted in significant hearing loss in his left ear. He stated that his friends and family noticed his difficulty hearing soon after his separation from service, and that a pre-employment examination in 1971 showed significant left ear hearing loss.

In April 2011, the Veteran had a Travel Board hearing at the RO before the undersigned Veterans Law Judge. The Veteran stated that before service he worked as a clerk. He reported that during service he fired rifles in basic training and again in additional weapons training upon arrival in Vietnam. He indicated that he fired rifles in a position closer to the left ear. He stated that with rifle training he experienced tinnitus that lasted until the following day. He reported that in Vietnam mortar attacks sometimes hit close by. He recalled the 1971 employment examination, when the examiner told him that he had lost 50 percent of the hearing in his left ear. He noted that after service his family and friends noticed his difficulty hearing and urged him to get a hearing aid. He stated that after service he worked in sales in the travel field.

In April 2011, private audiologist W. B., Au. D., reviewed records of testing of the Veteran's hearing. Dr. B. concluded that the Veteran had high frequency sensorineural hearing loss in the left ear and borderline normal high frequency hearing in the right ear. Dr. B. stated that asymmetric hearing loss could be noise induced. Dr. B. expressed the opinion that the Veteran's hearing loss was "likely the result of noise exposure."

The August 1968 service entrance examination showed right ear hearing that did not have impairment that is considered a disability for VA purposes, as provided in 38 C.F.R. § 3.385. The Veteran is competent to report noise exposure during service, and his accounts of that exposure are credible. He has presented evidence that people around him noticed his difficulty hearing after service. He states that a pre-employment examination in 1971 revealed left ear hearing loss. He has presented evidence that he has greater difficulty hearing with his left ear, and that he relies more on his right ear. Audiological testing in 2009 and 2010 measured the Veteran's right ear hearing as not having impairment that is considered a disability for VA purposes as provided in 38 C.F.R. § 3.385. The audiologist Dr. B. stated that the Veteran has borderline normal high frequency hearing loss in the right ear. Dr. B. did not state that the Veteran has a right ear hearing loss disability.

In conclusion, the probative evidence, and in particular audiometric testing, indicate that the Veteran does not have right ear hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385.  The Veteran's account of hearing difficulty, worse in the left ear, does not challenge or undermine the value of those test results. The preponderance of the evidence is against a finding that the Veteran has right ear hearing loss disability, so the Board must deny the appeal for service connection for such a disability.


ORDER

Entitlement to service connection for right ear hearing loss disability is denied.


REMAND

Additional evidence should be developed regarding the Veteran's claim for service connection for left ear hearing loss disability. The Board is remanding the case for a new VA audiology examination to attempt to clarify questions regarding the claim.

The assembled evidence leaves some question as to whether the Veteran had left ear hearing loss disability before he entered active duty. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).

On the Veteran's service entrance examination in August 1968, the left ear's auditory threshold at 4000 Hertz was reported as 35 decibels. As noted above, decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Standards Organization (ISO) units to facilitate comparison of results. The August 1968 examination occurred after November 1, 1967, but the examination report contains a stamped indication that the audiological evaluation was in ASA units. To convert a reading at 4000 Hertz from ASA to ISO units, the decibel reading is to be increased by 5. Converted to ISO units, then, the left ear threshold at 4000 Hertz is 40 decibels. Under 38 C.F.R. § 3.385, impaired hearing is a disability if the threshold for any of the relevant frequencies is 40 decibels or greater. 

In the March 2010 VA audiology examination, the examiner noted that the Veteran's 1968 service entrance examination showed a mild left ear hearing loss of 35 decibels at 4000 Hertz. It does not appear that the examiner converted the 1968 results from ASA to ISO units. On the new VA audiology examination, the examiner should consider the evidence service entrance examination findings based on the ISO units conversion from ASA, and should make a determination as to whether the Veteran had left ear hearing disability before he entered service. 

Even if the Veteran had left ear hearing loss disability before he entered active duty, service connection may be established for any aggravation of that disability during service. The Veteran contends that noise exposure during service either caused his current left ear hearing loss, or aggravated any left ear hearing loss that existed before service. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2011). If the clinician who performs the new VA examination determines that the Veteran had left ear hearing loss before his active service, the examiner should provide an opinion as to whether the left ear increased in disability during service. If the examiner finds that the Veteran did not have left ear hearing loss disability when he entered active service, the examiner should express an opinion as to the likelihood that the current left ear hearing loss was incurred in service. In forming opinions, the examiner should assume the credibility of the Veteran. The Veteran reports that he was exposed to weapons and engine noise during service, and that in training sessions he fired weapons closer to his left ear. The RO should provide the examiner with any relevant evidence that is in the Virtual VA electronic claims file and is not in the paper claims file.

Accordingly, the case is REMANDED for the following action:

1. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The AMC or RO is to review the electronic file. If documents contained therein are deemed to be relevant to the appeal and are not duplicative of the documents already found in the paper claims file, take action to ensure that the records in the electronic file are made available (whether by electronic means or by printing) to the clinician who is asked to review the claims file and provide medical findings in conjunction with the development requested herein.

2. Schedule the Veteran for a VA audiology examination by a clinician with appropriate expertise to address the likely etiology of the Veteran's left ear hearing loss. Provide the examiner with the Veteran's claims file for review. In forming the requested opinions, the examiner should assume the credibility of the Veteran's accounts regarding noise exposure history. The examiner should explain the reasoning leading to each conclusion and opinion that he or she reaches. After considering any necessary conversion of the Veteran's service entrance examination from ASA into ISO units, the examiner should provide an opinion as to whether the Veteran had left ear hearing loss disability before he entered active duty. If the examiner concludes that the Veteran had left ear hearing loss disability before his active service, the examiner should provide an opinion as to whether the left ear hearing disability increased during active service. If the examiner finds that the Veteran did not have left ear hearing loss disability when he entered active service, the examiner should express an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the current left ear hearing loss was incurred in service. 

3. After completion of the above, review the expanded record and determine if the remanded claim can be granted. If not, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review.

The Board intimates no opinion as to any final outcome of the remanded claim. The Veteran has the right to submit additional evidence and argument on that claim. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs