Citation Nr: 1303326 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-26 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDING OF FACT There is no medical evidence of record showing that the Veteran has bilateral hearing loss in accordance with VA standards. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the case of Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). A July 2011 RO letter informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b) as stated above. In light of the denial of the Veteran's service connection claim, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the duty to assist, the RO has obtained the Veteran's service treatment and personnel records, as well as his VA treatment records, and provided him with two VA examinations. The Veteran declined a Board hearing. There is no indication from the claims file that the Veteran has received private treatment for his bilateral hearing loss, and accordingly, no such records could be obtained. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, as discussed in more detail below, in this case, because there is no competent evidence showing that the Veteran was diagnosed with sensorineural hearing loss that was manifest to a degree of 10 percent or more during the first year following separation from service, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Moreover, the Board notes that, in adjudicating a claim, it is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that, in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Bilateral Hearing Loss The Veteran contends that service connection is warranted for bilateral hearing loss as it is attributable to exposure to loud noise during military service. Specifically, the Veteran asserts that he was exposed to acoustic trauma because of his work as an electrician and his service on the USS Pritchett. The Veteran states that the USS Pritchett exposed him to heavy and repeated naval artillery file. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Veteran's service treatment records do not reference complaints of or a diagnosis of hearing loss. Upon discharge from service, clinical evaluation of the Veteran's ears was normal, and whispered voice testing results were indicative of normal hearing, as reflected in the September 1969 separation medical examination. In January 2012, the Veteran underwent a VA audiological examination. Right ear auditory thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 50, 45, 60, 60, and 70 decibels, respectively. Left ear auditory thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 60, 55, 65, 75, and 85 decibels, respectively. The Veteran had Maryland CNC test scores of 96 percent in the right ear and 100 percent in the left ear. The VA examiner indicated that while the use of speech discrimination score is appropriate for the Veteran, the puretone test results are not valid for rating purposes. Thus, based on speech discrimination scores only, the VA examiner diagnosed the Veteran with normal hearing in both ears. The VA examiner concluded that an opinion could not be provided regarding the etiology of any hearing loss without resorting to speculation due to the inconsistencies in the Veteran's responses. The Board notes that the VA examiner did not have access to the claims file, and as such, the Veteran was afforded an additional VA audiological examination in July 2012. According to the July 2012 examination report, audiological testing performed during the evaluation revealed right ear auditory thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of 80, 85, 85, 90, and 100 decibels, respectively. Left ear auditory thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 75, 75, 80, 85, and 95 decibels, respectively. The Veteran had Maryland CNC test scores of 100 percent in the right ear and 96 percent in the left ear. Again, the VA examiner indicated that while the use of speech discrimination score is appropriate for the Veteran, the puretone test results are not valid for rating purposes and not indicative of organic hearing loss. Nonetheless, the VA examiner diagnosed the Veteran with sensorineural hearing loss in both ears and noted that "although some hearing loss may exist, it is not the degree demonstrated by this [V]eteran during today's testing." The VA examiner concluded that a medical opinion could not be provided regarding the etiology of the Veteran's hearing loss without resorting to speculation because the test results were inconsistent. Based upon the evidence of record, the Board finds that the audiological findings of record do not show hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. The Board acknowledges the private medical statement submitted by Dr. M.W., but finds that the audiological test results from the two VA examinations described above fail to show bilateral hearing loss. As previously stated, both VA examiners concluded that the puretone test results were not valid due to inconsistent responses received by the Veteran. However, speech recognition scores were deemed valid. Speech recognition scores for the right ear were 96 and 100 percent and 96 and 100 percent for the left ear. Such findings do not show hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. Under VA law and regulations, a valid claim of service connection does not exist absent evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran has reported that he has bilateral hearing loss, there are no post-service audiological test results showing that he has a hearing impairment by VA standards. See 38 C.F.R. § 3.385. As such, absent any current diagnosis of hearing loss in accordance with VA standards, an award of service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (holding that, in order for service connection to be granted, there must be a diagnosed or identifiable underlying malady or condition for which service connection may be granted). In other words, because there is no evidence of record showing that (1) the Veteran's auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; (2) his auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or (3) his speech recognition scores using the Maryland CNC Test are less than 94 percent, there is simply no evidence of a current hearing disability for which service connection may be granted. In making this determination, the Board does not question the sincerity of the Veteran's conviction that he has bilateral hearing loss, and acknowledges that, as a lay person, he is competent to report that he has difficulty hearing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994) (holding that competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses, that which is heard, felt, seen, smelled or tasted). Significantly, however, as a lay person, he is not professionally qualified to determine whether he has hearing loss in accordance with VA standards because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions); see Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet.App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Accordingly, because the Veteran is not professionally qualified to offer a diagnosis, and because there is no competent medical evidence of record showing that the Veteran has bilateral hearing loss in accordance with VA standard, the Board finds that the preponderance of the evidence is against the claim. As such, the Board finds that the criteria for service connection for bilateral hearing loss are not met and the Veteran's claim must be denied. In reaching this conclusion, 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. See 38 U.S.C.A. 5107(b); Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs