Citation Nr: 1301326 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-11 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from February 1974 to May 1974. He also had additional service with the United States Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. FINDING OF FACT The most probative evidence fails to link the Veteran's current bilateral hearing loss to service. CONCLUSION OF LAW The requirements for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act 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. 2012)) redefined VA's duty to assist a claimant in the development of a claim. 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 claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a September 2008 letter issued prior to the January 2009 initial rating decision, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's available service treatment records, service personnel records, VA treatment records and examination reports, and lay evidence. The Board acknowledges that the Veteran's enlistment examination is not of record. The RO requested the Veteran's complete service treatment records from the National Personnel Records Center (NPRC) in September 2008, and the NPRC responded by sending all available records, which did not include the Veteran's enlistment examination. Additionally, the RO contacted the Veteran and advised him of the unavailability of such records in November 2008, and invited him to submit any records in his possession. Because all efforts to obtain the Veteran's enlistment examination have been exhausted and further attempts would be futile-as documented in the RO's November 2008 Formal Finding of Unavailability of Service Records-the Board finds that the RO correctly followed the procedures prescribed in 38 C.F.R. § 3.159(c) in regard to requests for records in the custody of a Federal department or agency. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. Furthermore, the December 2008 VA medical opinion is adequate because the examiner explicitly considered the Veteran's claims file, provided a detailed description of the Veteran's bilateral hearing loss, and included a comprehensive rationale for her medical opinion. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one," Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As discussed above, the Board has considered and complied with applicable VCAA provisions. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d) (2012). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves. 38 C.F.R. § 3.6(c) (2008). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Where a veteran served on active duty for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. However, to the extent this presumption applies because the Veteran has established service connection for a different disability related to his 1974 period of ACDUTRA, the presumption is inapplicable in this case because the most probative evidence of record does not show that the Veteran manifested high frequency sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of service. 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). 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. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. In the present case, the Board finds that the evidence does not support an award of service connection for bilateral hearing loss. The Board acknowledges that the Veteran has a current diagnosis of bilateral sensorineural hearing loss during the pendency of the claim-in this case, in or after August 2008. Specifically, the December 2008 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). However, the evidence does not show in-service incurrence or aggravation of a disease or injury and a nexus between an in-service injury or disease and the current disability. Specifically, the Veteran's service treatment records include Reports of Medical Examination with audiometric results dated April 1974, December 1977, and December 1981: Apr. 1974 HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 10 LEFT 15 5 20 20 30 Dec. 1977 HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 10 Dec. 1981 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 10 5 10 20 30 Additionally, the Veteran's service treatment records include Reports of Medical History dated April 1974, December 1977, and December 1981, in which the Veteran reported that he did not have, and had never had, hearing loss. No documentation of complaints, diagnosis, or treatment of hearing loss appears in the Veteran's service treatment records. After service, VA obtained an opinion from an examining audiologist in December 2008. The audiologist noted the Veteran's report that he was exposed to truck noise in the Reserves, and to training weapons noise while on ACDUTRA. An audiometer evaluation revealed pure tone thresholds, in decibels, were as follows: Dec. 2008 HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 20 40 50 LEFT 15 10 30 60 50 The Veteran's speech recognition scores were 96 percent bilaterally. The VA examining audiologist diagnosed the Veteran with normal-to-moderately-severe bilateral sensorineural hearing loss. She opined that: It is not likely that [the Veteran's] current hearing loss is related to Military noise exposure due to normal hearing for VA rating purposes found throughout Military service. Exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift. This disappears in 16 to 48 hours after exposure to loud noise. Impulse sounds may also damage the structure of the inner ear resulting in an immediate hearing loss. Continuous exposure to loud noise can also damage the structure of the hair cells resulting in hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent hearing loss exists. Since the damage is done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss. The Board finds this opinion to be highly probative. The examiner explicitly considered the Veteran's claims file, discussed his medical history in her report, and interviewed the Veteran. Additionally, her etiological conclusion was unequivocal and conclusive, and her reasoning was clear. Consequently, the Board finds that the December 2008 VA examiner's opinion warrants great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no medical opinion to the contrary in the record. By contrast, the Board finds that the Veteran's own lay statements linking his bilateral hearing loss to service are not entitled to any probative weight because under the circumstances of this particular case he is not competent to opine on such complex medical questions. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (rheumatic fever is not a condition capable of lay diagnosis). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). In this case, the Veteran is competent to report that he was exposed to truck noise in the Reserves and to training weapons noise while on ACDUTRA. However, because diagnosing hearing loss involves the interpretation of objective medical tests and requires medical expertise to determine the etiology thereof, the Veteran is not competent to render a medical opinion on that matter. Woehlaert, 21 Vet. App. at 462. Consequently, the Veteran's opinion as to the etiology of his current hearing loss is not a competent medical opinion. The Board finds the medical opinion by the VA examiner to be significantly more probative than the Veteran's lay assertions as to the etiology of his hearing loss. Furthermore, the Board finds that the Veteran's assertion, in his August 2008 claim, that he was treated for bilateral hearing loss in service is outweighed by more probative evidence to the contrary-specifically, the Reports of Medical History dated April 1974, December 1977, and December 1981, in which the Veteran reported that he did not have, and had never had, hearing loss. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than subsequently reported history). Furthermore, as noted above, the Veteran's service treatment records did not show any complaints, diagnosis, or treatment for hearing loss. To the extent that the Veteran claims service connection on the basis of chronicity or continuity of symptomatology, these are unwarranted. 38 C.F.R. § 3.303(b). The Board finds that service connection is not warranted on the basis of chronicity because the Veteran was not diagnosed with chronic hearing loss in service. Furthermore, the Board finds that service connection is also not warranted on the basis of continuity of symptomatology because the most probative evidence of record shows that the Veteran did not have hearing loss disability during service. Id. Moreover, whether the symptoms the Veteran claims to have experienced in service or following service are in any way related to his current hearing loss is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). As noted above, the opinion of the VA examiner is of greater probative value on this point than the Veteran's lay contentions. The Board has also considered the Veteran's contention in his April 2009 substantive appeal that the VA examiner elevated the decibel level (i.e., increased the volume) during his speech recognition testing. The Board is aware that VA examiners increase the volume during speech recognition testing as needed. The use of increased volume and masking in order to obtain an accurate speech recognition score under the Maryland CNC test is in accordance with the examination protocol, and such testing results in the correct scores because it reflects the Veteran's ability to distinctly recognize speech at the volume intensity that he is best able to hear. In other words, testing for pure tone thresholds in decibels is done to determine one's ability to hear volume, while testing for speech recognition is done to determine one's ability to hear clearly (i.e., to distinguish words from muffled, but audible, sounds). See "Audio Examination," at: http://www.vba.va.gov/bln/21/benefits/exams/disexm05.pdf; see also "Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations," at: http://vbaw.vba.va.gov/bl/21/rating/Medical/docs/cphandbook.pdf. Regardless, the Veteran was not prejudiced thereby because the December 2008 VA examiner diagnosed the Veteran with normal-to-moderately-severe bilateral sensorineural hearing loss. As VA has acknowledged the Veteran's current diagnosis of bilateral hearing loss disability under 38 C.F.R. § 3.385, the question in this claim for service connection for hearing loss becomes whether his current hearing loss disability is related to service; the severity of his current bilateral hearing loss disability does not impact this determination. Thus, the Veteran's argument that the hearing test did not reflect the actual level of his impairment in speech recognition is not pertinent to the question being decided at this time. In sum, the Board finds that the most probative evidence fails to link the Veteran's current bilateral hearing loss to service. Accordingly, service connection for bilateral hearing loss is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs