Citation Nr: 1302371	
Decision Date: 01/22/13    Archive Date: 01/31/13

DOCKET NO.  08-18 115	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a low back disorder/residuals of a low back injury.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Childers, Counsel




INTRODUCTION

The Veteran served on active duty from September 1960 to September 1963. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2007 and March 2008 by a Department of Veterans Affairs (VA) Regional Office (RO).  The August 2007 rating decision denied the Veteran's request to reopen a previously denied claim of service connection for residuals of a low back injury; and the March 2008 rating decision denied the Veteran's claim for service connection for bilateral hearing loss.

In a decision in October 2011 the Board reopened the claim of service connection for residuals of a low back injury, and then remanded the matter for further development.  The Board also remanded the issue of service connection for bilateral hearing loss for additional development.  

With regard to issue of service connection for bilateral hearing loss, no further action to ensure compliance with the Board's remand directives is required; however, as regards the issue of service connection for a low back disorder, further evidentiary development is needed.

The issue of service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

Hearing loss disability was not shown in service or for many years thereafter, and the most probative evidence indicates the current hearing loss disability is not related to service, to include noise exposure therein. 


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by service; and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1131, 1112, 1137, 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 of 2000 (VCAA)

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) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

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).  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).  

The RO provided pre-adjudication VCAA notice on the issue of service connection for bilateral hearing loss in a letter dated in May 2006.  The Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  He was also notified of how VA determines disability ratings and effective dates.

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 service treatment records, service personnel records, VA and private medical records, VA examination reports, and the Veteran's lay statements.  

The Board also notes that actions requested in the prior remand have been undertaken.  Indeed, service personnel records and VA medical records were obtained and a VA examination with opinion was obtained.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  
	
As discussed above, VA has considered and complied with the provisions of the VCAA.  The Veteran was an active participant in the claims process by relaying medical and lay evidence.  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 notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

In September 1963, the Veteran separated from active duty service.  In May 2006 he filed a claim for service connection for hearing loss.  In his clam he reported that he had been wearing hearing aids for the past 3 years, and that his military occupational specialty during service was heavy weapons.  

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, 1131; 38 C.F.R. § 3.303.  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 the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

Hearing loss for the purpose of VA disability compensation is considered 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 Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service 
. . . a veteran may still establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley, at 159-160.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

For the reasons that follow, the Board finds that the preponderance of the evidence is against the claim.  

The Veteran's DD-214 confirms that his military occupational specialty was Heavy Weapons Infantryman; and service personnel records confirm that his service was entirely stateside.  Service personnel records also show that the Veteran, who entered active duty service at his age of 20, worked as a steelworker/welder for at least two years prior to service.

Hearing on whispered voice testing during a September 1960 enlistment examination was 15/15.

Audiometric testing during the Veteran's August 1963 separation examination found as follows:

Hertz
500
1000
2000
3000
4000
Right ear
10
10
10
-
10
Left ear
10
10
10
-
10

Conversion of this pre-1967 ASA data to ISO (ANSI) units yields the following:

Hertz
500
1000
2000
3000
4000
Right ear
25
20
20

15
Left ear
25
20
20

15

VA Audiology Clinic records dating from 1996 advise of bilateral mild to moderate high frequency sensorineural hearing loss, and confirm that the Veteran was fitted with custom hearing aids in the year 2000.  

As stated before, in May 2006 the Veteran filed his claim for service connection for hearing loss, and in January 2007, he was accorded a VA audiology examination.  During the examination he complained of loss of hearing for the past 10 years.  He said that he was exposed to heavy weapons fire and rocket launches during service, and denied civilian occupational noise exposure; however, he admitted that he had worked as an iron worker for over 30 years.  He said that he wore hearing protection in his civilian work.  The results of audiology testing were:

Hertz
500
1000
2000
3000
4000
Right ear
15
25
40
55
60
Left ear
15
25
40
55
60

The Maryland CNC Word List Recognition scores were 94 percent in each ear.  The diagnosis was hearing within normal limits from 500 to 1000 Hertz with a mild to moderately severe sensorineural hearing loss from 1500 to 4000 Hertz bilaterally.  In July 2007 the examiner opined that it was not likely that the Veteran's hearing loss was related to military noise exposure since his hearing was within normal limits at the time of his discharge from service.

In July 2009 the Veteran was accorded another VA examination.  In the ensuing report the examiner noted that the Veteran had served as a paratrooper during service and was exposed to related noise during training.  He also noted that the Veteran's work history was significant for noise from the Veteran's civilian employment as an iron worker and "bridge builder."  Audiology testing found as follows:

Hertz
500
1000
2000
3000
4000
Right ear
25
35
55
60
65
Left ear
20
30
60
60
70

The Maryland CNC Word List Recognition scores were 90 percent for the right ear and 92 percent for the left ear.  The diagnosis was normal to severe bilateral sensorineural hearing loss, which the examiner opined was less likely than not related to service.  The examiner reasoned that hearing thresholds were normal at the time of the Veteran's separation from service; the Veteran denied any hearing difficulties during his separation examination; and the Veteran's civilian work was positive for significant noise exposure.

In November 2011 the Veteran was accorded yet another VA examination.  Audiology testing found as follows:

Hertz
500
1000
2000
3000
4000
Right ear
15
35
50
60
60
Left ear
20
35
60
60
60

Maryland CNC Word List Recognition Scores were 88 percent for the right ear and 90 percent for the left ear.  Diagnosis was bilateral sensorineural hearing loss, which the examiner stated was not related to military service.  The examiner noted the Veteran's hearing was within normal limits at the time of his separation from service and there was no evidence of hearing loss or hearing changes in the peri-discharge period.  She noted that the Institute of Medicine has concluded that hearing loss due to noise neither enjoys a delay in onset nor progresses once a particular noise source is discontinued.  She explained that hearing loss due to a particular exposure is most significant at the time of the exposure, after which time, the hearing levels either remain at the poor level produced by the effects of that noise exposure or they improved.  So, hearing loss or hearing changes attributable to military noise exposure would have been present at the time of separation from service.  The examiner further noted that the Veteran had been engaged in very noisy work after service and was present in a building when it collapsed, causing the Veteran to feel "blown out."  The examiner then opined that the Veteran's current hearing loss was related to post-service noise exposure.

While the Veteran was undoubtedly exposed to loud noises as a heavy weapons infantryman in an Airborne unit, there is no contemporaneous record of hearing loss disability during service.  Nor is there evidence of such within the year after service, so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309 is not warranted.  In fact, there is no mention of hearing loss until 1996, more than 30 years after service; and the Board finds this significant lapse in time after service to be persuasive evidence against the Veteran's claim.  See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence).  The Board further notes that the Veteran had significant post-service occupational noise exposure as an iron worker.  In fact, the 2011 examiner states that the Veteran's hearing loss is likely due to noise exposure during his post-service civilian work, including the acoustic trauma during the 1992 workplace accident.

Most importantly, there is no competent medical evidence which indicates that the Veteran's current hearing loss disability is due to his in-service noise exposure.  In this regard, according to three VA audiology examiners, the Veteran's hearing loss is less likely related to service.  These opinions were based on careful review of the medical evidence of record; consideration of the Veteran's description of his pre-service, in-service, and post-service noise exposure and symptoms; consideration of the Veteran's subjective complaints; and the results of audiology testing.  The reports included a rationale in support of the examiners' opinions.  Moreover, the November 2011 examiner cited to the Institute of Medicine conclusion that hearing loss due to noise exposure is not delayed in onset and does not progress once a particular noise source is discontinued.  Thus, this examiner took into consideration medical treatise information in addition to the above considerations.  Thus, the opinion of the November 2011 examiner is entitled to greatest 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).  This opinion and those of the other two VA examiners are uncontroverted by any other medical opinion of record.  

The Board recognizes that the Veteran is competent to describe events that occurred during military service, and to describe his perceived symptoms of hearing loss.  However, there is no indication that the Veteran has any specialized training in diagnosing audiological disorders or determining their etiology.  In this regard, hearing loss can have many causes, and determining the existence and etiology of hearing loss requires medical testing and expertise to determine.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  Thus, to the extent that the Veteran's statements are offered as an opinion as to onset or etiology of his hearing loss, his opinion on this matter is not competent medical evidence.  The Board finds the opinions of the VA examiners to be significantly more probative than the Veteran's lay assertion as to onset and etiology of his current hearing loss disability.

In short, although the Veteran had loud noise exposure during service, hearing loss disability was not shown in service or within the year after service.  The absence of any lay or medical evidence of difficulty hearing until more than 30 years after service is also persuasive evidence against the Veteran's claim of service connection.  Most importantly, the competent and probative medical evidence of record indicates that the Veteran's current hearing loss disability is less likely related to service.  This evidence is highly probative evidence against the Veteran's claim.  There is no medical opinion to the contrary.  Accordingly, the Board concludes that the weight of the evidence is against the Veteran's claim, and service connection for bilateral hearing loss is denied. 

In reaching the above conclusions, 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  


REMAND

As noted in the introduction portion of this decision, in October 2011 the Board remanded the issue of service connection for a low back disorder for acquisition of military records.  Service personnel records received in November 2011 show that the Veteran was transferred to the U.S. Army Ready Reserves on his separation from active duty, and a U.S. Armed Forces document shows that the Veteran was honorably separated from the U.S. Army Reserves in 1966.  Administrative records compiled during this time included a July1964 document (DA Form 1140) relating to a back disorder.  Unfortunately, medical records pertaining to the Veteran's 1963-1966 Reserve service have not been obtained.  In this regard, the Board notes that the RO and the AMC duly requested records from the National Personnel Records Center, which in turn provided the Veteran's 1960-1963 active duty records.  However, as the Veteran also had service in the Ready Reserves and there is documented evidence of a bad back during this time, efforts to obtain Reserve medical records is warranted.  38 C.F.R. § 3.159(c)(2).

In addition to the foregoing, in November 2011 the Veteran was accorded a VA examination.  Unfortunately, the examination was done prior to the November 2011 receipt by VA of the Veteran's military personnel records.  And, according to the 2011 examiner, the Veteran's current low back disorder is less likely as not due to any injury in service, including parachute jumps and/or the August 1963 motor vehicle accident.  The examiner noted there were no sick visits and the Veteran was never seen for any back issues 48 years ago.  However, service treatment records dated in August 1963 confirm that the Veteran was seen for back complaints, and a Reserve personnel record dated in 1964 refers to disc and nerve involvement.    

Additionally, the 2011 examiner did not provide an opinion as to whether the Veteran's pre-existing "thoracic lumbar scoliosis" was aggravated during active duty service.  This is significant since service treatment records confirm that the Veteran was involved in a motor vehicle accident and was seen for back pain on September 7, 1963.  He reported that his sergeant would not approve an appointment so he saw a civilian doctor who diagnosed compression fracture of T8.  He was seen in the Orthopedic clinic that day and was noted to have thoracolumbar scoliosis with convexity to the left at T11.  X-rays revealed scoliosis without fractures, and questionable reverse spondolysthesis L5-S1 but no symptoms referable to that area.  The Veteran was given reassurance.  It was noted he was being discharged in 10 days.  

In light of the above, the matter should be returned to the 2011 examiner for an additional opinion.  

Finally, in his November 2011 opinion the examiner stated that the Veteran's current low back disorder may be due to a post-service workplace accident in 1992 where a stair well fell on him.  On remand a request should be made for Workers' Compensation records.  38 C.F.R. § 3.159(c)(2).  

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.   Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his low back disability.  After securing any necessary release, the RO/AMC should request any relevant records identified which are not already contained in the claims file.  Additionally, obtain relevant VA treatment records dating since September 2011 from the Durham VA Medical Center.  If any requested records are not available, the Veteran should be notified of such.

2.  Request the Veteran's U.S. Army Reserves medical records dating from 1963 to 1966, from the appropriate authority.  If no medical records are found, the RO/AMC should determine whether further attempts to obtain the documents would be futile and notify the Veteran accordingly.

3.  Ask the Veteran for pertinent information (date, where claim was filed, etc.).concerning any claim he filed with Workers' Compensation concerning his workplace accident to the Veteran's back in 1992.  After securing a release if necessary, records concerning his claim should be requested from the appropriate agency.  If no records are obtainable, the RO/AMC should notify the Veteran accordingly.

4.  After completion of steps 1 through 3, return the claims file to the November 2011 VA "back" examiner for review and an addendum opinion.  In responding to the questions below, the examiner is asked to consider the following facts:

* the Veteran was an infantryman in an Airborne unit, and performed numerous parachute jumps during service; 
* in-service Orthopedic Clinic records dated in September 1963 confirm that the Veteran reported for treatment for back pain hours after a motor vehicle accident on August 31, 1963 with clinical findings of thoracolumbar scoliosis with convexity to the left; 
* x-rays taken September 7, 1963, showed thoracolumbar scoliosis with no fracture, and the clinician noted questionable reverse spondolysthesis L5-S1 with no symptoms referable to that area; 
* the Veteran separated from active duty service ten days later, in September 1963, and was transferred straight to the Army Ready Reserves; 
* Reserve personnel records include a July 1964 record of a bad back 

Following review of the claims file, the examiner should respond to the following:

a) Was the Veteran's pre-existing thoracic lumbar scoliosis aggravated during service beyond the natural progression of the disorder?  The term "aggravated" means a permanent increase in the underlying disability, that is, an irreversible worsening of the disorder beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms.

b) Is it more likely, less likely, or at least as likely as not (50% probability) that a non-congenital low back disorder arose during active duty or is related to some incident of active duty service, including the 1963 motor vehicle accident? 

A complete rationale for all opinions provided must be set forth in a legible report.  If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should so state, and explain why that is so.  If the original examiner is not available, the file should be forwarded to another physician to obtain the requested opinions.  If a new examination is deemed necessary to respond to the questions, one should be scheduled.

5.  After completion of all of the above and any other development deemed necessary, the RO/AMC should re-adjudicate the claim on appeal.  If the claim remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs