Citation Nr: 1300181 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 12-06 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for left ear hearing loss. ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to December 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in September 2011, a statement of the case was issued in March 2012, and a substantive appeal was received in March 2012. FINDING OF FACT The Veteran's left ear hearing loss disability was not manifested in service, sensorineural hearing loss (SNHL) was not manifested in the first postservice year, and such disability is not otherwise shown to be related to his service. CONCLUSION OF LAW Left ear hearing loss was not incurred in or caused by the Veteran's active duty service, nor may it be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). By December 2010 letter the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal and was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed the Veteran of disability rating and effective date criteria. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records (STRs) are associated with the claims file and the Veteran has not identified any pertinent evidence that remains outstanding. The RO arranged for a VA examination in March 2011 and sought an addendum opinion that was received in June 2011. The examination and opinion are (cumulatively) adequate as the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Because sensorineural hearing loss (SNHL) is an organic disease of the nervous system, it may be service connected on a presumptive basis if manifested to a compensable degree in the first year following a veteran's discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 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, (e.g., a broken leg), (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 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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). For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including Virtual VA (VA's online claims database), with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his current left ear hearing loss was caused by exposure to acoustic trauma during military service, including working in an area outside of the base that was mortared and other exposures to loud explosions such as blowing up the ammo dump. His service records confirm his military occupational specialty was a general vehicle repairman, and thus he was likely exposed to substantial levels of hazardous noise in service. It is not in dispute that he was exposed to noise trauma in service. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis pertaining to hearing loss. No audiometry testing was performed on December 1968 service separation examination; however, the Veteran did not report any complaints of hearing loss at the time of the examination. Postservice treatment records include VA treatment records from April 2006 through the present as well as a private treatment record. The postservice treatment records indicate complaints of left ear hearing loss beginning in November 2009; the Veteran reported that it had been going on for a long time following an explosion while he was on the ground in Vietnam. He reported that it had worsened over the previous 10 years. On April 2010 private audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were (by reference to an audiogram): HERTZ 500 1000 2000 3000 4000 Left 70 55 40 60 50 Speech audiometry revealed speech recognition ability of 80 percent in the left ear. There was no discussion regarding the etiology of the left ear hearing loss. On May 2010 VA audiology consult, the Veteran reported that he had recently seen a private audiologist and he sought a hearing aid as recommended by the audiologist; a hearing aid was issued. On March 2011 VA audiological examination, the examiner noted that the April 2010 private audiological evaluation showed a moderate to severe conductive hearing loss in the left ear. The Veteran reported military noise exposure in the form of shelling, rifle fire (as he was a left-handed shooter), and an ammunition dump explosion. He stated that he was not able to wear hearing protection while serving in Vietnam. He reported occupational noise exposure as a railroader, performing track maintenance, for 20 years; he stated that it was not very noisy, and the railroad did not require hearing protection. He reported that he also worked as a mailroom supervisor in a prison system for seven and a half years, which was not noisy and did not require hearing protection. He denied any recreational noise exposure, including hunting, target shooting, engine work, loud music, or heavy power tool use. He reported that he had hit his head on a rock at the age of three or four years, and he denied any other head injuries, falls, or physical blows to the head, neck, or ears. He reported a shelling incident in Vietnam after which he stated he could not hear normally; he stated that the shelling incident did not result in any bleeding from the ear, falling or hitting his head, or any injury other than not hearing well. He denied any known hereditary hearing loss. Although scarring was noted on the Veteran's left eardrum, he denied any history of ear infections or ear surgeries. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Left 65 70 35 80 55 The average puretone threshold was 60 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The diagnosis was mild to severe conductive hearing loss in the left ear. Otoscopic examinations revealed essentially clear external auditory canals, and normal tympanic membrane landmarks were observed. The examiner found some scarring on the left tympanic membrane and recommended follow-up with an ENT due to conductive hearing loss in the left ear which could possibly be improved with medical or surgical intervention. The examiner stated that, as the claims file was not received for review by the time the examination was released, the examiner could not yet offer an opinion. In a June 2011 addendum opinion, the March 2011 VA examiner noted that the Veteran's separation physical examination did not show audio readings or any indication of hearing loss. The examiner noted that the Veteran's duty position in service was a wheeled vehicle mechanic and was shown to have a high probability of exposure to noise. The examiner noted that the April 2010 private audiologist identified a sensorineural hearing loss, where as the March 2011 VA examination suggested conductive hearing loss. Considering the Veteran's military occupational specialty and his reported case history, the examiner opined that the Veteran's left ear hearing loss is less likely as not (less than 50/50 probability) the result of military noise exposure. The examiner noted that the conductive nature of the Veteran's hearing loss is not consistent with a noise induced hearing loss and opined that the unilateral nature of the hearing loss is not consistent with the reported incidence of acoustic trauma. The Veteran has stated that his hearing loss had its onset in service. As noted above, a veteran is competent to testify regarding facts or circumstances that can be observed and described by a layperson. However, findings of competency and credibility are two distinct matters, and after a careful review of the evidence, the Board finds that while the Veteran is competent to testify as to observable symptoms, like hearing loss, his statements that he has had hearing loss ever since service are not credible. Significantly, although the Veteran stated that he received ear drops in service, the STRs are entirely silent for any complaints or findings regarding the ears or hearing loss; thus, his recollection of ear treatment in service is contradicted by the contemporaneous clinical records that are notably absent of any such treatment. The Board further observes that the Veteran's first complaints of left ear hearing loss in the medical evidence occurred in November 2009 (41 years after separation in service), when he stated that it had been going on for a long time but had worsened over the previous 10 years (since 1999, or 31 years after separation from service). Significantly, this approximately 41-year period between separation from service and the initial post-service complaint of hearing loss is, of itself, highly probative evidence against the Veteran's claim and against the credibility of his contention that hearing loss began in service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). It is not in dispute that the Veteran now has left ear hearing loss. The hearing loss (by VA standards) was confirmed by VA audiometry (including speech discrimination score). However, such disability is not shown to have been manifested in service. Therefore, service connection on the basis that this disability became manifest in service and persisted, or on a chronic disease presumptive basis (for SNHL as an organic disease of the nervous system under 38 U.S.C.A. § 1112), is not warranted. What remains for consideration is whether the left ear hearing loss is somehow otherwise shown to be etiologically related to the Veteran's service. The only competent medical evidence in this matter is the report of the March 2011 VA examination and June 2011 addendum opinion. The Board finds the VA examiner's opinion to be entitled to great probative weight, as it took into account a complete review of the Veteran's entire medical history and statements included in the claims file, full audiometric/audiological evaluation, and provided full rationale for the conclusions reached, citing to the fact that there was no evidence of hearing loss in service or within one year after separation from service. Having found the Veteran's statements that his left ear hearing loss disability had its onset in service not credible (because such statements are inconsistent with the earlier evidence of record), and because there is no other competent evidence to the contrary, the Board finds the VA examiner's June 2011 opinion to be persuasive. In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, service connection for left ear hearing loss must be denied. ORDER The appeal is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs