Citation Nr: 1301583 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 11-04 364 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty for training from July 1972 to November 1972. He had additional periods of active duty for training and inactive duty for training in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in St. Paul, Minnesota. The appeal initially included the additional issue of entitlement to service connection for tinnitus; however, the RO granted this benefit in full in a July 2011 decision and it is therefore no longer part of this appeal. While the Veteran's claim was initially bifurcated into service connection for left ear hearing loss and service connection for right ear hearing loss, since the same principles apply to each ear the Board has combined them into one issue. The Veteran testified before the undersigned Veterans Law Judge at an October 2012 hearing. FINDING OF FACT A bilateral hearing loss disability was not shown to have been caused or made worse by active duty, active duty for training, or inactive duty for training, and an organic disease of the nervous system was not manifested within one year of separation. CONCLUSION OF LAW Bilateral hearing loss was not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in March 2010 that explained how VA could help him gather evidence in support of his claim. The March 2010 letter also explained how to establish service connection for a claimed disability and how ratings and effective dates are established for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records from the National Guard and private treatment records and opinions, and a transcript of the Veteran's testimony at the October 2012 hearing. A VA examination was afforded to the Veteran in connection with his claim which fully addressed his contentions. For these reasons, the Board finds that VA satisfied its obligations pursuant to the VCAA in this case. Also, during the hearing, the Veterans Law Judge explained the concept of service connection, clarified the issue, and addressed the requirement for federal rather than state service. Such actions supplement the VCAA and possible involvement of 38 C.F.R. § 3.103. Service connection The Veteran contends that he has bilateral hearing loss as a result of exposure to noise during his period of active service as well as periods of annual training in the National Guard. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the context of Reserve or National Guard service, active military service is defined to include any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24). While certain chronic diseases that are set forth in 38 C.F.R. § 3.309(a), including sensorineural hearing loss, are also generally subject to a presumption of in-service incurrence if manifest to a compensable degree within one year after active service, this does not apply to active duty for training or inactive duty for training. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). However, since service connection has been granted for tinnitus based upon his Vietnam Era service, such service is considered active service. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, service treatment records show normal hearing at entry in 1972 (although pure tone thresholds are not given, the box is marked "within normal limits"). There is normal hearing during the Veteran's National Guard service, including at his most recent military examination in 1988, although pure tone thresholds had changed slightly in the left ear since a 1975 audiogram. The Veteran denied experiencing hearing loss in an October 1988 Report of Medical History. The 1988 audiometric results were normal. In his February 2010 claim, the Veteran contended that he was exposed to weapons fire, explosions, and engine noise while he was in the National Guard and that these exposures caused his hearing loss. The Veteran was afforded a VA examination in March 2010. At that time, he reported exposure to artillery fire and explosions while in basic training and training for his military occupational specialty. He did not remember how often he was exposed to the noise or if he used ear protection. Prior to and after service, he was exposed to noise from farming equipment. After service, he was exposed to noise from sources including boilers, vacuums, lawn mowers, snow blowers, chain saws, and power tools as well as from hunting. At the examination, normal to moderately severe sensorineural hearing loss was shown in the right ear but hearing was normal for VA purposes in the left ear. The examiner opined that it was less likely than not that the Veteran's hearing loss was related to service. However, she noted that the opinion was based on audiograms from after the Veteran's period of active service so it was impossible to discern whether any threshold shift occurred during active duty. The examiner reasoned that although there was no calibrated audiometric data at enlistment or discharge, the Veteran had normal hearing while he was in the National Guard. In terms of any causal relationship between shifts noted in service and the Veteran's current hearing loss, the examiner was unaware of any research that supported late onset hearing loss once the Veteran has been removed from the noisy environment. The examiner noted that the Veteran was exposed to a lot of noise after service. The Veteran submitted an August 2010 private audiogram, which showed hearing loss for VA purposes in both ears. The Veteran's private physician indicated that the Veteran had combined type sensorineural hearing loss. He opined that the Veteran's significant high frequency hearing loss was most likely due to noise induced trauma that was not consistent with routine noise exposure such as from a work environment. He opined that the Veteran's hearing loss likely started in service and continued thereafter. In a second opinion dated in February 2011, the same private physician related that he had reviewed the Veteran's service treatment records. He noted that Army National Guard records showed 5, 10, and 10 decibel shifts at the 1000, 2000, and 4000 Hertz frequencies in the left ear, and the right ear was exposed to the same noise environment. The private physician opined that combined with the situation that both ears current hearing loss had a configuration consistent with noise exposure, military noise was at least as likely as not the cause of the Veteran's hearing loss. In response to the private evidence supplied by the Veteran, VA obtained a supplementary VA report about the source of the Veteran's hearing loss. The examiner indicated that the National Institute of Medicine determined that studies in humans and animals were sufficient to conclude that the most pronounced effects of noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, either partial or complete, related to the level, duration, and type of noise exposure, with most recovery to stable hearing occurring within thirty days. Current science indicates that the understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss is extremely unlikely. The basic conclusion from research is that individuals with previous noise induced hearing loss are neither more nor less susceptible to subsequent noise induced hearing loss than individual with no prior hearing loss. The examiner explained that with normal hearing found after discharge as documented in his National Guard physicals, there is no evidence of hearing damage due to military noise exposure. Any worsening of hearing from the time of discharge to the present was due to noise exposure after service. The examiner concluded that based on this evidence, the Veteran's hearing loss was not caused or aggravated by military service. A publication in the claims file notes that "[t]here is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of the noise exposure. Although definitive studies have not been performed, based on anatomical and physiological data available on the recovery after noise exposure, it is unlikely that such delayed effects occur." In another addendum dated in July 2012, the examiner noted that the Veteran did not have a significant threshold shift during his National Guard service, because the recommended definition by the National Institute for Occupational Safety and Health is that a shift of 15 decibels or more is necessary for this. The examiner quoted the same language from the Institutes of Medicine as did the previous examiner, and again opined that the Veteran's hearing loss was not related to military service. The Veteran testified at an October 2012 hearing. At that time, the Veteran provided a letter from his friend to the effect that he noticed that the Veteran complained of hearing loss after a period of active service in the National Guard and still had problems with his hearing. The Veteran testified that he had multiple periods of active duty for training in the National Guard, including basic training and mechanic school, and that he was exposed to noise during these periods of time. The Veteran submitted a copy of a study on mice that showed that exposure to noise may cause progressive consequences that are more widespread than revealed by conventional testing. With respect to the mice, there was some latent damage after hearing thresholds returned to normal which suggested that exposure to noise might be more dangerous than conventionally accepted. The evidence does not show that it is at least as likely as not that the Veteran's hearing loss is related to service. Although he provided subjective reports of hearing loss shortly after active service, his hearing was shown to actually be normal by audiometric testing through to 1988. It is also notable that the Veteran actually denied experiencing hearing loss at that time. In any event, subjective reports of difficulty hearing do not demonstrate the existence of a hearing loss disability or indicate the actual time at which such a disability onset. The existence of normal audiograms during the Veteran's National Guard service shows that although he might have felt that his hearing was worse, it was actually normal at that time. VA examiners reviewed the Veteran's claims file and determined that it was less likely than not that his hearing loss was due to military service, based on the existence of normal post-service audiograms and the lack of scientific support for the existence of delayed onset hearing loss. Their opinions are more probative than that of the private physician who opined that the Veteran's hearing loss was related to military service. While the private physician reviewed the Veteran's service treatment records, he did not provide any explanation as to any mechanism through which delayed onset hearing loss could occur. He noted a slight threshold shift in the left ear during the Veteran's National Guard service, which the VA examiner explained was insignificant and in any event would not establish that noise from federal National Guard training activities caused the change as opposed to other non-service related activities. There was no similar threshold shift in the right ear at all in any event. Moreover, even with consideration of the shift, the Veteran's hearing was still normal through 1988 and, as explained by multiple VA examiners, current conventionally accepted research does not support the existence of delayed onset hearing loss, notwithstanding the study on mice that was provided by the Veteran. The Veteran's representative argues that the case of Hensley v Brown, 5 Vet. App. 155 (1993) dictates that service connection may be granted for delayed onset hearing loss. However, that case merely reiterated the situation that a disability need not be present during military service in order for service connection to be granted, if other evidence shows that it is in fact related to military service. This principle is the same in all service connection cases. In this case, the claim is denied not because the Veteran did not have a disability in service, but because the weight of the evidence does not indicate that his present hearing loss disability was related to his military service, either active, active duty for training, or inactive duty for training. The Board has considered the lay evidence. It is unclear if there is an allegation of continuity of symptomatology. However, in light of the pleadings and the lay statement from a friend, we would find such allegation not credible as it is inconsistent with the service department clinical findings and the denial of pertinent pathology in October 1988. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for a bilateral hearing loss disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs