Citation Nr: 1300832 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 11-27 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Veteran's claim. Original jurisdiction currently resides at the RO in Nashville, Tennessee. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's left ear hearing loss disability preexisted entry into service and did not increase in severity during or as a result of service. CONCLUSION OF LAW A left ear hearing loss disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a left ear hearing loss disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in January 2010, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the statements from the Veteran, service treatment records, as well as VA treatment records. The Veteran was afforded a VA audiological examination in February 2010 with an addendum opinion dated July 2010. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. In his October 2011 substantive appeal [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision. Service connection for a left ear hearing loss disability Pertinent legal criteria Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish service connection for the claimed disorder, there must be (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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). For the purposes of applying the law 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. or 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. See 38 C.F.R. § 3.385 (2012). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that 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 clear and unmistakable evidence shows 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 (2012). 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 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The medical evidence of record indicates that the Veteran currently has a left ear hearing loss disability for VA evaluation purposes. The focus of this decision is whether the Veteran's left ear hearing loss disability pre-existed service and if so whether it was aggravated by or due to service. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306. Presumption of Soundness As was discussed above, the Board's first inquiry is whether the statutory presumption of soundness on enlistment has been rebutted. In this case, the Veteran's January 1951 entrance audiological examination documented whispered voice testing of 15/15. However, "complete nerve deafness left ear" was noted and the Veteran was placed on a profile for hearing loss, with a temporary profile was listed as a "2." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). A subsequent hearing test dated December 1951 revealed whispered voice testing of 0/15 as well as spoken voice testing of 0/20, and the Veteran's H-2 profile was continued with conductive deafness of the left ear noted. Additionally, the Veteran reported at that time that he lost hearing in his left ear when he was 11 years old. The Veteran's separation examination dated April 1953 noted whispered voice testing of 15/15, although deafness in his left ear that existed prior to enlistment was noted. The Veteran's service treatment records, to include the January 1966 entrance examination thus go beyond a mere "bare conclusion without a factual predicate in the record." See Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran's January 1966 entrance examination and the December 1951 treatment record indicate a long-standing left ear hearing loss disability on enlistment. The Board therefore finds that, as the Veteran's entrance examination noted a left ear hearing loss disability, the statutory presumption of soundness is rebutted. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Aggravation The Board must next determine whether the Veteran's pre-existing left ear hearing loss disability underwent an increase in severity during his period of active military service, thereby triggering the presumption of aggravation. See Maxson v. West, 12 Vet. App. 453 (1999) [the presumption of aggravation is generally triggered by evidence that a pre-existing disability has undergone an increase in severity in service]; see also Sondel v. West, 13 Vet. App. 213 (1999). The Veteran contends that his left ear hearing loss disability is due to his military service, specifically due to noise exposure from firing weapons and being around anti-aircraft units. See, e.g., the February 2010 VA examination report. The Veteran's DD Form 214 reflects military service in Korea during the Korean Conflict. As such, pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the circumstances of the Veteran's service, including service in Korea during the Korean Conflict, would be consistent with exposure to loud noise in service. However, in the present case, the record does not reflect that the Veteran's preexisting left ear hearing loss disability underwent an increase in severity during service to warrant a presumption of aggravation. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). In this regard, there is only one medical opinion of record which addresses the matter of aggravation. Specifically, the Veteran was afforded a VA audiological examination in February 2010. Pertinently, the VA examiner noted and accepted the Veteran's report of the in-service noise exposure from firing weapons and being around anti-aircraft units. After examination of the Veteran and consideration of his medical history, the VA examiner concluded in an addendum dated July 2010 that "[t]he evidence is pretty strong that the [Veteran's] hearing loss was complete and prior to the service. The lack of objective hearing test results however makes impossible to determine aggravation therefore, I cannot resolve this issue without resort to mere speculation." The Board notes that in finding that it is speculative as to whether the Veteran's left ear hearing loss disability was aggravated by his military service, the VA examiner provided a rationale for his conclusion. Specifically, the examiner's rationale for his conclusion was his finding that the Veteran's service treatment records indicated that he had complete nerve deafness in his left ear at the time of enlistment and separation. He also noted that the whispered voice testing conducted during service were contradictory in 1951 with 15/15 documented at the January 1951 entrance examination and 0/20 and 0/15 testing in December 1951. The Board adds that the Veteran's April 1953 separation examination indicated whispered voice testing of 15/15. The examiner therefore found that the lack of objective testing made it impossible to determine aggravation. The Board therefore finds that in qualifying his opinion with sufficient rationale, to include review of the Veteran's service treatment records and the Veteran's medical history, remand is unnecessary for further development. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The February 2010 VA examination report therefore appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. 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"]. The Veteran has not submitted a medical opinion to contradict the VA examiner's opinion. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is the claimant's responsibility to support a claim for VA benefits]. In light of the foregoing, the Board concludes that the evidence does not show that the Veteran's left ear hearing loss disability underwent an increase in severity during service. In reaching this conclusion, the Board notes that, in relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. 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, (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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including difficulty hearing), has presented no competent evidence of in-service aggravation of left ear hearing loss disability. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to an aggravation of the preexisting condition during military service. That is, the Veteran is not competent to opine on matters such as aggravation of his left ear hearing loss disability. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to in-service aggravation of his left ear hearing loss disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Thus, the statements offered by the Veteran in support of his own claim are not competent evidence of aggravation. Accordingly, because the evidence of record indicates that there was no increase in disability during the Veteran's period of active duty service, the Board finds that the presumption of aggravation is not for application. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Additional comment The Board finds it interesting to note that, despite the Veteran's contention that the etiology of his left ear hearing loss disability is his in-service acoustic trauma, he does not currently suffer from a right ear hearing loss disability for VA evaluation purposes. 38 C.F.R. § 3.385. In this regard, pure tone thresholds, in decibels, were as follows for the Veteran's February 2010 VA audiological examination for his right ear, which is the only current audiological examination of record: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 30 35 Speech discrimination score at that time was 100 percent in the right ear. The VA examiner reported results within normal limits with sloping to a moderate high frequency sensorineural hearing loss for the right ear. The VA examiner declined to diagnose the Veteran with a right ear hearing loss disability. His rationale was based on the objective audiological testing of the Veteran's hearing acuity. Conclusion For reasons and bases stated above, the Board concludes that a preponderance of the evidence is against the Veteran's claim. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a left ear hearing loss disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs