Citation Nr: 1304115	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  10-40 677A	)	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:	The American Legion



ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from November 1953 to September 1955.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded the case for additional development in June 2012.  

The Board notes that the Veteran requested and was provided a copy of his service treatment records in May 2010.  Although he submitted an additional request for these records in correspondence dated in October 2010, the Board finds he has been provided the records and that his subsequent statements requesting expedited processing of his claim may be construed as a withdrawal of any outstanding request for records associated with his claim.

The issue of entitlement to service connection for tinnitus has been raised by the record in an October 2010 VA Form 9, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

A hearing loss disability for VA compensation purposes was not manifest in service, was not manifest within one year of service, and is not shown to have developed as a result of an established event, injury, or disease during active service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred or aggravated as a result of active service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in July 2009.  The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  The available record includes service treatment records, VA treatment and examination reports, private treatment records, and the Veteran's statements in support of his claim.  

The development requested in the 2012 Board remand, including the development of VA and private treatment records and a VA audiological examination, has been substantially completed.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) Stegall v. West, 11 Vet. App. 268, 271 (1998).  A VA audiology examination report with a medical opinion was prepared in 2012 and additional VA treatment records were associated with Virtual VA (electronic record).  The Veteran did not provide information requested by VA in June 2012 pertaining to private treatment by the Tennessee Valley Audiology Clinic and P.W.E., Ph.D.  The Board finds that further attempts to obtain additional evidence would be futile.  

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 Board finds that an August 2012 VA medical opinion obtained in this case is adequate as it is predicated on a substantial review of the record and medical findings and considers the Veteran's reported complaints and symptoms.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).  The available medical evidence is sufficient for an adequate determination.  There has been substantial compliance with all pertinent VA laws and regulations. 

Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  

A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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.  See 38 C.F.R. § 3.385 (2012).

Once the requirements of 38 C.F.R. § 3.385 have been met and a present hearing "disability" under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service.  In particular, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al. eds., 1988)).  Even if a Veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss to active service.  Id. at 158.  The threshold for normal hearing is 0 to 20 decibels.  Id. at 157.

Service connection can be granted for certain diseases, including sensorineural hearing loss, if manifest to a degree of 10 percent or more within one year of separation from active service.  The presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent.  Clyburn v. West, 12 Vet. App. 296 (1999).  

Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr, 21 Vet. App. 303.  In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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.  

In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence.  The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so.  See Owens v. Brown, 7 Vet. App. 429 (1995).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102 (2012).

The Veteran contends that he has a bilateral hearing loss as a result of noise exposure during active service.  He reported he was exposed to hazardous noise as an Air Force fire fighter.  His service treatment records are negative for complaint, treatment, or diagnosis of hearing loss.  A September 1955 service department report noted a physical profile (PULHES) indicative of a high level of fitness relative to hearing.  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition.").

Private medical records show the Veteran underwent radiation treatment for squamous cell carcinoma of the right true vocal cord which was completed in approximately November 2004.  An August 2005 report noted complaints of decreased hearing that seemed to be worse since his last visit.  That report also noted that an audiogram revealed bilateral sensorineural hearing loss.  Subsequent reports noted decreased hearing acuity.  No opinions as to etiology were provided.

VA treatment records dated in July 2009 noted the Veteran's "[r]adiation treatment has left him for the most part deaf."  Subsequent records show he was provided hearing aids.  No opinions as to etiology were provided.

On VA authorized audiological evaluation in August 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
75
80
85
90
105
LEFT
85
85
80
90
95

Speech audiometry revealed speech recognition ability of 58 percent in the right ear and of 58 percent in the left ear.  The examiner summarized the pertinent evidence of record and noted the Veteran reported military noise exposure including sirens and weapons noise on the firing range.  He reported occupational noise exposure prior to service associated with work involving farm equipment, jack hammers at a rock quarry, and a drill press.  He reported post-service occupational noise exposure including having worked in construction on a dredge around heavy equipment.  It was noted the Veteran initially denied a history of hunting, but that when questioned about service treatment records indicating the loss of a finger in a hunting accident he reported he had stopped hunting after that incident.  The Veteran stated his hearing loss began sometime around 2001.

The examiner noted that private medical reports revealed a severe to profound sensorineural hearing loss in 2009 that was reportedly longstanding and more noticeable over the previous eight years.  The examiner found, based upon medical records indicating no problems with hearing until 2001, substantial problems with hearing following radiation procedures in 2004, negligible noise exposure in service, and significant occupational non-military noise exposure, that the Veteran's current hearing loss was less likely due to in-service noise exposure.  

Based upon the evidence of record, the Board finds that a hearing loss disability was not manifest in service, was not manifest within one year of service, and is not shown to have developed as a result of an established event, injury, or disease during active service.  The Veteran's report of noise exposure is consistent with the circumstances of his service; however, the Board finds the August 2012 VA examiner's opinion is persuasive and highly probative.  The provided opinion is shown to have been based upon a thorough examination of the Veteran and a review of the evidence of record, including the Veteran's contentions.  

While the Veteran is competent to provide evidence as to observations and some medical matters, he is not shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to the etiology of a complex internal medical process like sensorineural hearing loss.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012).  Accordingly, the lay evidence in this case as to etiology does not constitute competent medical evidence.  The competent etiology opinion evidence of record demonstrates that the Veteran's present hearing loss was not likely incurred as a result of service.  Therefore, the Board finds the claim for entitlement to service connection for bilateral hearing loss must be denied.  

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the claim.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
M. C. Graham
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs