Citation Nr: 1237888 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 09-00 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hearing loss in the right ear. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1966 to May 1968, including service in Vietnam. In June 2011, the Board of Veterans' Appeals (Board) reopened claims for service connection for left ankle and left knee disabilities, granted service connection for hearing loss in the left ear and for tinnitus, denied service connection for low back disability, and remanded the reopened issues of service connection for left ankle and left knee, as well as the issue of service connection for hearing loss in the right ear, to the Department of Veterans Affairs (VA) regional office in Waco, Texas (RO) for additional development. With respect to the issue of service connection for hearing loss in the right ear, the Board directed the RO to obtain a current audiological evaluation with nexus opinion. A VA audiological evaluation was obtained in July 2011 and a nexus opinion was obtained in August 2011. Consequently, there has been substantial compliance with the June 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). As an August 2011 rating decision granted service connection for chondromalacia of the left knee and left ankle sprain, these disorders are no longer on appeal. Each disorder was assigned a noncompensable evaluation from April 20, 2007 through June 24, 2011; chondromalacia of the left knee was assigned a 20 percent rating and left ankle sprain was assigned a 10 percent evaluation effective June 25, 2011. FINDINGS OF FACT 1. All known and available service medical records have been obtained; the Veteran has been advised under the facts and circumstances of this case as to the evidence which would substantiate his claim for service connection for hearing loss in the right ear; and he has otherwise been assisted in the development of his claim. 2. The Veteran's pre-service hearing loss in the right ear did not undergo a permanent increase in severity as a result of military service. CONCLUSION OF LAW The criteria for the establishment of service connection for hearing loss in the right ear are not met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App"). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); 38 C.F.R. § 19.7; see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Assist and Notify Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's June 2007 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided with a VA audiological examination in July 2011 in conjunction with the claim on appeal, as well as an August 2011 nexus opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The August 2011 opinion was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board finds that a new examination is not warranted. 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, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Analysis of the Claim The Veteran, who contends that he served in combat, seeks service connection for hearing loss in the right ear. He has contended that his exposure to acoustic trauma in service aggravated his preexisting hearing loss in the right ear. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of sensorineural hearing loss in the frequencies of 500 to 4000 hertz, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 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." 38 C.F.R. § 3.385. In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2011). However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1110, 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2011). When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the "pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Conversely, if a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. See Wagner, 370 F. 3d at 1094-1096. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). With respect to the issue of service connection for hearing loss in the right ear, the presumption of sound condition on service entrance does not apply because the Veteran's January 1966 preservice audiogram noted defective hearing in the right ear. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). The issue thus becomes whether the Veteran's pre-existing disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such 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. Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). The Veteran's service treatment records show that during his January 1966 pre-induction enlistment examination, his pure tone thresholds were as follows: Hertz 500 1,000 2,000 3,000 4,000 Discrimination Ability Right Ear 25 (40) 15 (25) 5 (15) 0 (10) 25 (30) Left Ear 5 (20) 0 (10) 5 (15) 5 (15) 10 (25) The ASA results are the figures on the left of each column and are not in parentheses. The converted standards set by the ISO-ANSI are represented by the figures in parentheses. His service treatment records do not include any additional hearing testing, including on discharge evaluation in May 1968. An uninterpreted March 2007 audiogram from Denton Hearing Health Care appears to show the following pure tone thresholds, in decibels: Hertz 500 1,000 2,000 3,000 4,000 Discrimination Ability Right Ear 35 40 40 45 75 96 percent Left Ear 20 20 45 55 70 92 percent The diagnosis in March 2007 was of a mild to profound sensorineural hearing loss across the frequency range of the right ear. It was noted that the Veteran was exposed to acoustic trauma while serving in an artillery unit in Vietnam. The examiner concluded, based on excessive noise exposure in service and lack of documentation regarding hearing threshold levels upon separation, that it was as likely as not that the Veteran's hearing loss was related to service. Also on file is a June 2007 VA evaluation report in which a mild, mixed hearing loss in the right ear is diagnosed. The VA physician noted that although the claims file was not available, the clinical evaluation and audiometric testing strongly suggested that a significant air-bone gap was present in the right ear. The physician also noted that this gap, along with absent acoustic reflexes on tympanometry, would suggest that fenestral and cochlear otosclerosis well might be the etiology of the Veteran's hearing loss. It was also noted that, because the Veteran was 61 years old, presbycusis could also be a factor. A VA audiological evaluation was conducted in July 2007. It shows the following pure tone thresholds, in decibels: Hertz 500 1,000 2,000 3,000 4,000 Discrimination Ability Right Ear 35 45 35 45 70 100 percent Left Ear 25 15 45 60 65 100 percent The diagnosis in July 2007 was of a mild mixed hearing loss in the right ear. According to a January 2008 VA opinion from the VA physician who provided the examination report in June 2007, the evidence shows significant threshold shifts in the right ear prior to service. The VA physician was unable to provide an opinion on whether the Veteran's preexisting hearing loss was aggravated by service without resorting to speculation. According to an August 2010 VA audiology consultation report, pure tone threshold audiometry for the right ear showed a mild sloping to profound sensorineural hearing loss from 1000 to 8000 hertz. Word recognition was 96 percent. Hearing aids were to be ordered. The Veteran testified before the undersigned Veterans Law Judge in March 2011 that he was exposed to acoustic trauma in service from artillery fire. The Veteran's son testified that he has had hearing problems for many years. A subsequent VA audiological evaluation was conducted in July 2011, which included review of the claims files. Pure tone thresholds, in decibels, were as follows: Hertz 500 1,000 2,000 3,000 4,000 Discrimination Ability Right Ear 35 45 40 55 95 96 percent Left Ear 10 15 45 60 65 96 percent It was noted that the claims files had been reviewed and that the Veteran had had a preexisting hearing loss at 500 and 4000 hertz in the right ear at enlistment and that5 the audiology report showed a mild to moderate mixed hearing loss in the right ear from 500 to 3000 hertz, precipitously falling to a profound hearing loss at 4000 hertz. The Veteran demonstrated excellent word recognition ability. A mixed hearing loss in the right ear was diagnosed, and the examiner concluded that it was not within the scope of practice of an audiologist to provide a nexus opinion, particularly in light of the finding of a mixed hearing loss. The VA physician who provided reports in June 2007 and January 2008 concluded in an August 2011 VA Addendum to the July 2011 report that, after review of the claims files, the most likely etiology of the Veteran's preexisting right ear hearing loss was otosclerosis. It was less likely than not that the Veteran's right ear hearing loss was aggravated by noise exposure during service. Rather, stiffening of the ossicular chain of the right ear due to otosclerosis would tend to protect the inner ear from acoustic trauma and noise exposure. The Veteran contends that he is a combat Veteran. Although he was not awarded any medals indicative of combat, the Board finds that the outcome of this case would not be affected by the combat presumption. As noted above, although Section 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a current disability and medical evidence of a nexus between a current disability and active service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). After review of the evidence as a whole, the Board finds the evidence against the claim, especially the August 2011 VA Addendum, to be more probative than the evidence in favor of the claim. In this regard, although the March 2007 private medical opinion finds it as likely as not that the Veteran's current hearing loss is related to exposure to acoustic trauma in service, this opinion, which is not based on a review of the claims files, does not address whether the preexisting hearing loss in the right ear was aggravated by in-service noise exposure. On the other hand, the August 2011 Addendum opinion is based on a review of the pertinent evidence and provides a nexus opinion and a supporting rationale. The VA physician who examined the Veteran in 2008 and provided the August 2011 opinion concluded that the Veteran's preexisting hearing loss in the right ear was most likely due to otosclerosis; that he had a mixed hearing loss in this ear; and that the pre-service right ear loss was not aggravated by service acoustic trauma, as this condition would actually help protect the inner ear from noise exposure. Due consideration has been given to the hearing testimony and the Veteran's statements in support of his claim. Although the Veteran is competent to report his hearing symptoms, he is not competent to opine that he currently has aggravation of pre-service hearing loss due to service. The Board does not dispute that the Veteran was exposed to acoustic trauma in service; however, the evidence as a whole, as discussed above, does not show increased hearing loss in the right ear due to service. Consequently, service connection for hearing loss in the right ear is denied. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claim denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hearing loss in the right ear is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs