Citation Nr: 1237288	
Decision Date: 10/31/12    Archive Date: 11/09/12

DOCKET NO.  08-37 643	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from January 1970 to March 1972.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the benefit sought on appeal.

The RO in St. Louis, Missouri, has jurisdiction of the Veteran's claim file.  


FINDING OF FACT

Bilateral hearing loss disability was initially demonstrated decades after active duty, and there has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran's bilateral hearing loss disability is related to active duty. 


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101 , 1110, 1112,1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).


Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 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; and (3) that the claimant is expected to provide.  VCAA notice 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), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.

In correspondence dated in April 2006, VA informed the appellant of what evidence was required to substantiate his claim, and his and VA's respective duties for obtaining evidence.  The correspondence also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman.

In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision.  Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini.  The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices.

The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).  The Board finds that the VCAA notice requirements have been met in this case.

Duty to Assist

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, a statement from a fellow serviceman as to the Veteran's inservice acoustic trauma, and the Veteran's statements in support of his claim.  The Board has carefully reviewed the record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

VA conducted an examination in September 2008.  The Board obtained a VA specialist's opinion in April 2012, and provided it to the Veteran and his representative.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA opinions obtained in this case are more than adequate, as they reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for the opinion offered.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion has been met.  38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  

Legal Analysis

With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  See 38 C.F.R. § 3.303(b).  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). 

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b). 

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley  v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385 (2012). 

The Board points out that the absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Hensley also provides 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 medical relationship between a Veteran's in-service exposure to loud noise and his current disability.  

The Veteran contends that he now has bilateral hearing loss as a result of acoustic trauma during combat flight in Vietnam.  He denies any post-service exposure to acoustic trauma.  He bought a hearing aid for himself in 1996, and states that he would have gone to VA for treatment sooner if he had known he was eligible.  The Board concedes that the Veteran was exposed to acoustic trauma during active duty.  

Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. 

The Veteran's service treatment records include the report of a January 1970 enlistment physical examination.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
00
00
--
25
LEFT
00
00
00
--
15

At separation in February 1972, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
00
--
15
LEFT
00
5
00
--
10

The foregoing active duty audiogram results reflect that during active duty the Veteran's pure tone thresholds deteriorated at 1000 Hertz, and improved at 4000 Hertz.  The Veteran's service treatment records are negative for hearing loss for Hensley purposes.  They also show that the Veteran denied past or current hearing loss in January and September 1970.  

The post-service evidence is negative for complaints, symptoms, findings or diagnoses of hearing loss for decades after the Veteran's active duty.  Thus, presumptive service connection is not warranted.  38 C.F.R. §§ 3.307 and 3.309.  Moreover, a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).    

A September 2002 VA outpatient treatment report reflects that the Veteran requested hearing aids.  In November, he returned for the fitting of hearing aids. 

The report of a September 2008 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results.  The resulting diagnosis was sensorineural hearing loss.  The examiner provided the opinion that the Veteran's bilateral hearing loss was not caused by or a result of acoustic trauma during active duty.  The examiner explained that the Veteran's separation audiogram was consistent with clinically normal hearing, and the Veteran did not report hearing loss at discharge.  To the extent that the examiner's negative opinion is based on the absence of in-service evidence of hearing loss, it is contrary to Hensley, supra, and Ledford, supra.  

However, the examiner also explained his negative opinion by stating that the configuration of the Veteran's current hearing loss was not consistent with acoustic trauma.  This rationale is not contrary to Hensley, supra, and Ledford, supra.  The Board finds that this rationale constitutes probative evidence against the Veteran's claim.  It is based on current audiogram results, which the examiner explained in terms of medical principles and expertise.  This fact is particularly important, in the Board's judgment, as the reference makes for a more convincing rationale.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history).

The April 2012 VA specialist's opinion provides that the specialist reviewed the Veteran's claims file, and sets forth the relevant medical history and the Veteran's subjective complaints.  She noted that the Veteran was first seen for a medical audiogram for the purpose of obtaining hearing aids in November 2005 (sic), 33 years after service.  She stated that current research did not support the delay of onset of hearing loss.  She also stated that the configuration of the Veteran's hearing loss in 2005 and 2008 was not indicative of a noise-induced hearing loss, but was more in line with a presbycusis hearing loss.  She stated that it was therefore her opinion that it was less likely as not that the Veteran's hearing loss was related to military service. 

The Board finds that the VA specialist's opinion also constitutes probative evidence against the Veteran's claim.  It is based in part on current audiogram results and the Veteran's lengthy post-service history without hearing aids, which the specialist explained in terms of medical principles and expertise.  The Board recognizes that the specialist misidentified the year of the Veteran's first audiogram, stating it was in November 2005 instead of November 2002.  The Board also recognizes that the Veteran later informed VA that he paid for his own hearing aids in 1996.  Nevertheless, the Board finds that the specialist's negative opinion still weighs strongly against the Veteran's claim, as for her the determining factor was not the exact length of the significant post-service delay in hearing loss, but the fact that the significant delay occurred.  

The specialist's references to facts in the record are particularly important, in the Board's judgment, as they make for a more convincing rationale.  See Bloom, supra (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  See Prejean, supra (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins, supra (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history).

The Board finds it significant that there is no medical evidence to the contrary of the foregoing VA opinions.  In fact, the post-service evidence is negative for any evidence linking the Veteran's current bilateral hearing loss disability to his active duty.  

The Board notes that the Veteran is competent to report having sustained acoustic trauma during active duty.  Since his contentions are consistent with the circumstances of his service, such assertions are deemed to be credible.  The Veteran is also competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing noise exposure and hearing loss problems during or after service).  Barr, supra; Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Board finds him in credible in this regard.  Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

However, the Veteran is not competent to say that any loss of hearing acuity experienced in service was of a chronic nature to which current disability may be attributed, or that his current hearing loss disability is etiologically related to acoustic trauma in service.  A layperson is generally not deemed competent to express an opinion on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology.  See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  As such, the Board finds that the Veteran's assertions are outweighed by the negative VA medical opinions.  

In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for bilateral hearing loss disability.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 

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ORDER

Service connection for bilateral hearing loss disability is denied.  



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs