Citation Nr: 1302849 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-25 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 1989, from September 1990 to June 1991, and from May 2005 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Regional Office (RO) in Nashville, Tennessee. In May 2011, the Board remanded the claim for service connection for bilateral hearing loss, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing additional development, the AMC continued to deny the claim (as reflected in an August 2011 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. When the Veteran's claims file was returned to the Board, the Board supplemented the record with an expert medical opinion from an audiologist with the Veterans Health Administration. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(a) (2012). The requested opinion has been provided and has been associated with the claims folder. FINDING OF FACT The Veteran does not have hearing loss as defined by VA regulation. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the service connection issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in December 2007 of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. Because the letter addressed all notice elements and predated the initial adjudication by the AOJ/RO in April 2008, nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA has also satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports are of record. The Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. In addition, relevant VA examinations were obtained in March 2008 and July 2011. The Board also obtained a VHA opinion in October 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2008 and July 2011 examinations are more than adequate to the extent that they provide the necessary testing data to determine whether the Veteran presently has hearing loss for VA purposes. It is true that the July 2011 examination report was deficient because it failed to address certain questions presented by the Board in its Remand. However, as discussed immediately below, that deficiency was cured by obtaining a VHA opinion. The VHA opinion is also found to be adequate for decision-making purposes, as it included a full review of the Veteran's claims file, is supported by sufficient detail, and refers to specific documents and medical history, as well as the Veteran's statements regarding what he believes was the onset of his hearing loss, to support the conclusions reached based on specific questions presented by the Board. Copies of this opinion were sent to the Veteran and his representative in November 2012. They were both provided with a 60-day period to review this opinion and provide additional evidence. Additional argument was received from the representative in January 2013 without any additional evidence. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue being decided herein has been met. 38 C.F.R. § 3.159(c)(4) (2012). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran asserts that he has bilateral hearing loss, which began during active service. He has reports that an improvised explosive device (IED) exploded right next to him. See VA Forms 21-4138 dated in December 2007 and October 2008. He has also relates that he served as an infantryman and was exposed to small and large guns fire, mortar fire, artillery, AT-4 rocket launchers, and grenades with some use of hearing protection. See March 2008 VA examination report and VA Form 9 dated in July 2009. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels, and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Even if disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. Hensley v. Brown, supra, at 160. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Turning to the evidence of record, the Board finds that there is no controversy in this case as to whether the Veteran was exposed to noise trauma in service. His DD 214 indicates that he served as an infantryman during his third period of service, a specialty generally associated with noise exposure. See VBA Fast Letter 10-35 (September 2010). Service treatment records also include an in-service reference audiogram, which was conducted following the Veteran's exposure in noise duties. See February 1987 Reference Audiogram. His account of his in-service noise exposure is credible and entirely consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). Thus, the Board concedes exposure to noise in service. [In this regard, the Board notes that the RO also conceded the Veteran's in-service noise exposure in its April 2008 grant of service connection for tinnitus based on such exposure.] Notwithstanding his exposure to noise in service, after careful review of the evidence of record in light of the Veteran's contention and the applicable law, the Board finds that his claim fails because a current hearing loss disorder is not shown for VA purposes. Service treatment records reflect no specific instances of complaints or treatment stemming from noise trauma. None of the many hearing examinations that were conducted during the Veteran's active service document the presence of hearing loss for VA purposes or, for that matter, any type of hearing loss. Notably, the Veteran's service treatment records, from his third period of service do include a May 2005 pre-deployment health assessment which indicates the Veteran was considered in good health and deployable. Also of record is a post-deployment health reassessment report from July 2006, which shows the Veteran indicated that he was often exposed to loud noises during his deployment. While he reported problems with ringing of the ears, he made no reference to hearing loss. Nevertheless, when audiometric test results during service do not meet the regulatory requirements for establishing a "disability" at that time, the Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley, supra. Moreover, as noted above, pursuant to Hensley, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels, and that higher thresholds show some hearing loss. Post-service evidence includes an October 2007 VA audiological consultation note, within a year of service discharge. At that time, the Veteran was diagnosed with mild sensorineural hearing loss and was considered a borderline candidate for amplification. The entry went on to attribute the Veteran's hearing loss to noise exposure in service. The VA audiologist did not provide numerical values for the pure tone thresholds at frequencies 500, 1000, 2000, 3000, and 4000 Hz. Although the VA audiological consultation report does not indicate specific pure tone threshold values, it does note a speech recognition of 100 percent at both the 60 dB range and the 84 dB range in the right ear, which would not meet the threshold criteria for hearing loss for VA purposes. There was also a speech recognition of 100 percent at the 60 dB range in the left ear, which also would not meet the threshold criteria for hearing loss for VA purposes. Of some significance, however is the Veteran's speech recognition score of 92 percent in the left ear at 84 dB range, which would suffice as a current diagnosis of left ear hearing loss. An explanation as to the discrepancy was not provided and the consultation note. There is also no indication as to whether the score was obtained using the Maryland CNC speech recognition testing. In March 2008, the Veteran was referred for a VA audiological examination for the specific purpose of obtaining an opinion as to whether his current hearing loss could be related to service. His report of exposure to excessive military noise remained unchanged. The Veteran denied occupational and recreational noise exposure. Pure tone thresholds for the Veteran's right ear were 25, 20, 20, 15, and 20 decibels at 500, 1000, 2000, 3,000, and 4000 Hz, respectively, and for the left ear at the same frequencies were 20, 20, 35, 20, and 20 decibels. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 in the left ear. These test results indicated clinically normal hearing on the right and normal to mild sensorineural hearing loss on the left. These hearing thresholds do not meet the criteria of disability under VA regulations. The Veteran was examined by VA in July 2011, in response to the Board's May 2011 Remand. Among other things, the examiner was instructed to make a determination, if possible, as to whether the Maryland CNC speech recognition test was used to evaluate the Veteran's speech recognition during the October 2007 VA audiological consultation; provide an explanation as to the discrepancy of the speech recognition scores at 60 dB and 84 dB; and explain how speech recognition is tested, evaluated, and scored. Current audiometric findings revealed puretone thresholds in the right ear of 20, 20, 15, 20, and 20, decibels at 500, 1000, 2000, 3,000, and 4000, respectively, and for the left ear at the same frequencies were 20, 15, 20, 15, 20, and 20 decibels. Speech audiometry revealed speech recognition ability of 94 percent in both ears. These hearing thresholds do not meet the criteria of disability under VA regulations. Unfortunately, the VA examiner failed to explain the significance of the discrepancy in the October 2007 report with respect to the speech recognition scores at 60 dB and 84 dB or how speech recognition is tested, evaluated, and scored by VA. There was also no clear indication as to whether or not the Maryland CNC test was used during the October 2007 VA outpatient audiological evaluation. Ordinarily, if the VA does not comply with the Board's Remand directives, the Veteran is entitled to a new examination. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). In this case, the Board determined that since only a medical opinion was needed, with no further physical examination necessary to evaluate the claim, a more prudent course would be to obtain a medical expert opinion. In August 2012, the Board referred the claim to the Veterans Health Administration (VHA) for a medical expert opinion in accordance with 38 C.F.R. § 20.901(a). In an October 2012 VHA opinion, an audiologist, thoroughly reviewed the claims file and addressed the specific questions stated for consideration by the Board. Referring to the October 2007 VA audiological consultation note, the VHA audiologist noted that use of the recorded Maryland CNC 50-word list is not required for treatment examinations. Citing to a medical reference, she noted that deciding which test to use for speech recognition assessment involves choosing the most efficient test for the purpose at hand. For most routine audiological evaluations, this would be one of the widely accepted, open-set tests such as the CID W-22 and NU6. Other variables determine how tests are administered, such as abbreviating the length of the list (to a 25-word list), especially for high performing patients (like this patient). The examiner also has the choice to present the stimuli as 'monitored live-voice' or recorded, depending on the equipment available, the timeliness of testing, and the needs of the patient, etc. In fact, for routine audiological evaluations about 82 percent of audiologist use monitored live-voice instead of recorded speech recognition stimuli. The VHA audiologist then concluded that given the amount of variables present for treatment (i.e. non-compensation) examinations, and the fact that using the Maryland CNC taped word lists are not standard protocol for treatment examinations, it is less likely as not that the Maryland CNC speech recognition test was used in the October 2007 audiological evaluation. In discussing the discrepancy in the speech recognition scores at 60 dB and 84 dB during the October 2007 audiological consultation, the VHA audiologist noted that in all testing, there is an amount of test-retest variability that is considered acceptable. The difference between the two test scores in question (92 percent vs. 100 percent) is considered acceptable test-retest variation for speech recognition scores obtained for treatment purposes; that is it would not change the treatment plan for the patient. In other words, for treatment purposes, the difference (92 percent vs. 100 percent) is not significant and, therefore would not be considered a "discrepancy" in treatment testing. The VHA audiologist noted that as long as the presentation level for speech recognitions testing is at least 40 dB above the speech reception threshold (SRT) score, it is not considered a significant variable in speech recognition testing outcomes. In the case at hand, the SRTs for the October 2007 evaluation were not provided; however it is known that the 60 dB presentation level was sufficient to elicit peak performance since the score for that level was 100 percent. Therefore presenting at a higher level is not a significant change in the test since, as indicated above, subsequent increases in presentation level maintains peak performance. This is true in the October 2007 test as an increase in presentation level, from 60 dB to 84 dB, did not bring about a significant change in performance for treatment purposes. The audiologist then provided a thorough explanation of how speech recognition is tested, evaluated and scored for both treatment purposes as opposed to Compensation and Pension (C&P) examinations. She again noted the many variables and audiological choices available to the audiologist. She explained that the amount of variability in procedures for speech recognition testing during treatment examinations is precisely why they should not be considered adequate for rating purposes. For compensation and pension evaluations, the variables of speech recognition are well controlled. The audiologist then concluded that the October 2007 treatment examination was not adequate for rating purposes and should not be used to determine if the Veteran had hearing loss by VA regulation standards. The C&P examinations are completed using strict C&P protocol and, as such, are the only tests adequate to determine if a hearing loss by VA regulation exists in this case. Moreover, since the Veteran did not have hearing loss for VA purposes on subsequent C&P evaluations, the examiner concluded that it can be assumed that no persistent hearing loss existed in October 2007. Furthermore, viewing the claims file in its entirety, including the audiological evaluations completed for compensation and pension purposes, and the service treatment records, the audiologist concurred with the previous opinion. Audiometric hearing test completed for separation purposes was within normal limits and showed no significant worsening of hearing acuity when compared to the hearing test completed at the time of induction. Since hearing loss due to noise occurs at the time of the exposure and not subsequently, it is not likely that any loss was caused by or the result of military noise exposure. Again, the post-service evidence does not currently show hearing loss as defined by VA regulations. The Board acknowledges initially that the Veteran was exposed to excessive noise in service as his DD Form 214 indicates he served as an infantryman. However, the fact that he was exposed to noise trauma in service does not establish a basis for the grant of service connection for hearing loss. The evidence of record shows that a hearing disability was not present at any time during service, at the time of discharge, or within the first post-service year. Thus, service connection for hearing loss on a presumptive service connection basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309. The post-service audiometric examinations of record do not show hearing loss as defined by VA regulations. The measurements of the Veteran's hearing acuity in 2008 and 2011 do not satisfy any of the three alternate bases for establishing hearing loss disability under 38 C.F.R. § 3.385. The findings do not show a puretone threshold in any critical frequency was 40 decibels or greater, that three or more frequencies were 26 decibels or greater, or that the speech recognition score was less than 94 percent. Therefore the Veteran does not have hearing loss for which service connection could be awarded for VA purposes, notwithstanding that he may have had noticeable loss of hearing acuity. The Board acknowledges that the October 2007 VA audiological consultation indicates mild bilateral sensorineural hearing loss. However, as explained, this treatment record did not contain pure tone threshold values and, does not otherwise conform to VA's requirements for evaluating hearing impairment, in that it is devoid of speech discrimination results using the Maryland CNC speech discrimination test. In addition, the October 2012 opinion from the VHA audiologist, concluded the Veteran did not have hearing loss for VA purposes in October 2007. In that regard, the Board finds the 2012 VHA opinion is highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. The VA examiner considered the Veteran's history of noise exposure, the results of the previous clinical evaluations in 2008 and 2011, the relevant history as contained in medical records from service onward, and discussed the Veteran's symptoms in the context of that history. She thus had sufficient facts and data before her. As a result, she was able to address fully the salient question as to the presence of any current hearing loss. Therefore, after weighing all the evidence, the Board finds greater probative value in the 2012 VHA opinion, and, in light of the other evidence of record, that negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consequently, and based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for hearing loss. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in which the Court held that, in the absence of proof of a present disability, there can be no valid claim). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). In reaching this conclusion, the Board has not overlooked the Veteran's contentions; his statements to healthcare providers; or his written statements that he has difficulty understanding the television without turning the volume up and notices trouble understanding speech in the presence of background noise. The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). 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. Davidson v. Shinseki, 581 F.3d 1313, 1316. 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). That said, the Board notes that the Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Although the Board recognizes the sincerity of the arguments advanced by the Veteran in this case, his contentions regarding the etiology of his claimed disabilities are not statements merely about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. In other words, while the Veteran is competent to attest to hazardous noise exposure with resulting decreased hearing, hearing loss is specifically defined in VA regulations by specific decibel loss, which must be identified through a controlled audiometric examination administered by a medical professional. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The problem in this case is that the objective medical evidence is simply against the finding that the Veteran's hearing loss rises to the level that allows for compensation under the governing law and regulation. Therefore, his opinion, to the extent it is to be accorded some probative value, is far outweighed by the findings provided by the VHA medical expert who discussed his history of noise exposure, complaints, and manifestations in support of her conclusions. See Jandreau supra & Buchanan supra. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs