Citation Nr: 1304791	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  10-05 136	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

C. Fleming, Counsel



INTRODUCTION

The Veteran had active service from July 1965 to May 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim for service connection for hearing loss.  Jurisdiction over the Veteran's claims file was transferred to the RO in Nashville, Tennessee, in January 2010.  The Board remanded the Veteran's claim in June 2012 for further evidentiary development and adjudication.  In the remand the Board instructed the agency of original jurisdiction (AOJ) to request additional medical records from the Veteran, obtain an addendum to the VA examination conducted in August 2008, and then re-adjudicate the claim.  The AOJ sent a letter requesting that the Veteran submit any additional relevant evidence, and the AOJ obtained an addendum opinion to the VA examination.  The AOJ then issued the Veteran a supplemental statement of the case (SSOC) in December 2012, in which it again denied the claim.  Thus, there has been compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).


FINDING OF FACT

Hearing loss was not demonstrated in service or within one year of separation from service; the Veteran's current hearing loss is not attributable to military service.


CONCLUSION OF LAW

The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1101, 1112, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

In this case, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished.

In this respect, through an April 2008 notice letter, the Veteran received notice of the information and evidence needed to substantiate the claim on appeal.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim.

The Board also finds that the April 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence.  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.  See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).  See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession).  These requirements were met by the aforementioned April 2008 notice letter.  In addition, the Veteran was provided notice regarding an award of an effective date or rating criteria in the April 2008 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  The Board does not now have such issues before it.  Consequently, a remand for additional notification on these questions is not necessary.  

Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal.  The Veteran's service treatment records have been associated with the claims file, as have records from his ongoing treatment with VA treatment providers.  He has not otherwise alleged that there are any outstanding medical records probative of the claim that need to be obtained.  The Veteran also underwent VA examination in August 2008, with an addendum opinion added in September 2012.  To that end, 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).  Here, the Board finds that the VA examination and addendum opinion obtained in this case are collectively adequate, as they are predicated on audiological examination as well as consideration of the medical records in the claims file and the Veteran's history.  The opinions address all of the pertinent evidence of record, to include statements given by the Veteran at the time of the examination, and provide a complete rationale for the opinions stated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim has been met.  38 C.F.R. § 3.159(c)(4).

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999).  If an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from qualifying service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder.  38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition.  Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent.

Service connection may be established if a claimant can demonstrate (1) that a condition was "noted" during service, (2) there is evidence of post-service continuity of the same symptomatology, and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488 (1997).

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2012).  The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated 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 if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability.  The Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d).

Here, the Veteran contends that he experiences hearing loss that is attributable to noise exposure while serving on active duty, and in particular to a rocket attack and firefight in which he was engaged while on active duty.  First, the Board notes that VA audiology examination conducted in August 2008 shows a current hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  The Veteran served on active duty from July 1965 to May 1969.  His DD Form 214 indicates that his military occupational specialty was security policeman, and he has stated on multiple occasions that he was exposed to noise during service from weapons fire, and in particular the rocket attack and firefight that occurred in January 1969.  His service record reflects that he was awarded the Bronze Star with V Device pursuant to the January 1969 incident.  His in-service exposure to loud noise is therefore conceded.

Post-service evidence consists of the report of a VA audiological examination conducted in August 2008, with an addendum opinion added in September 2012.  In addition, records of the Veteran's ongoing treatment with VA treatment providers have been associated with the file; however, these records are silent as to any complaints of or treatment for hearing loss.  A review of the Veteran's service treatment records reflects that he was noted to have hearing loss in the low frequencies of the left ear at his May 1965 pre-enlistment medical examination.  However, at his entry examination, he was noted to have normal ears and did not complain of any problems with his ears.  His May 1965 entry examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5 (20)
5 (15)
-5 (5)
-5 (5)
-5 (0)
LEFT
35 (50)
25 (35)
5 (15)
0 (10)
5 (10)

(NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.)

He was treated in service in January 1968 for the removal of sutures from the top of his right ear and in July 1968 for external otitis media on the right.  At his February 1969 separation medical examination, audiometric testing revealed normal hearing in both ears, and no abnormalities in the ears were noted.  On his separation medical history report, the Veteran answered "Yes" when asked if he experienced hearing loss and ear, nose, or throat trouble; however, the physician's note indicates that he reported "hearing loss, minor, years ago" and had no current disability.  His February 1969 separation examination revealed pure tone thresholds, in decibels, as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
-5
0
LEFT
-5
-5
0
0
0

A VA examination was provided to the Veteran in August 2008.  Report of that examination reflects that the Veteran reported having been exposed to noise in service, including from weapons fire and from the rocket attack incident for which he was awarded the Bronze Star.  The Veteran reported post-service occupational and recreational noise exposure as well and stated that he had noted problems with his hearing acuity over the past ten years.  Following audiometric testing, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss.  She opined, however, that the hearing loss was less likely than not related to service, looking to his normal hearing at his February 1969 separation medical examination.  

Pursuant to the Board's remand, the VA examiner who conducted the August 2008 examination provided an addendum in September 2012.  The examiner reiterated her earlier finding that it was less likely than not that the Veteran's current hearing loss was etiologically linked to his time in service.  In so finding, the examiner acknowledged the Veteran's in-service noise exposure, including the January 1968 rocket attack, and noted that he had displayed hearing loss in the low frequencies of the left ear at his entry into service.  In arriving at her opinion, the examiner pointed out that hearing loss due to noise exposure is "known to occur only immediately.  There is no scientific evidence to support delayed onset."  She further noted that despite his hearing loss at service entry, the Veteran had displayed normal hearing on examination at his separation from service.  The examiner further noted that low frequency hearing loss such as that shown in the Veteran's left ear at his entry examination "is often conductive in nature" and can be due to causes such as an ear infection or head cold.  The examiner additionally found that the Veteran had significant post-service noise exposure, both occupationally and recreationally, and reasoned that such post-service exposure was the more likely cause of his current hearing loss.

Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss.  The Board concedes that VA examination confirms that the Veteran currently suffers from hearing loss.  The Board concludes, however, that the greater weight of the evidence is against the claim.  Here, even conceding the Veteran's exposure to noise while in service, the VA examiner found no link between any current hearing loss and military service based on the record, to include the in-service rocket attack the Veteran experienced.  Noting that the evidence did not show any hearing loss at the Veteran's separation from active duty but did reveal substantial post-service noise exposure, the VA examiner gave as her medical opinion that it was not at least as likely as not that any current hearing loss was related to the Veteran's military service, including to his acknowledged in-service exposure to loud noise.  Additionally, there is no medical evidence suggesting that sensorineural hearing loss became manifest to a compensable degree within a year of the Veteran's separation from military service.  38 C.F.R. §§ 3.307, 3.309.

Furthermore, the Board finds persuasive the absence of medical evidence showing a nexus between the Veteran's service and current hearing loss.  In that connection, the Board notes that the medical opinion submitted by the VA examiner acknowledged the Veteran's complaints of in-service noise exposure but nonetheless concluded that it was less likely than not that the Veteran's current hearing loss was in fact due to in-service exposure to noise or otherwise related to service.  In so finding, the examiner looked to the Veteran's normal hearing at separation in finding that any current hearing loss was not likely related to service.  This evidence is not contradicted by any other medical evidence of record; there is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service-including his in-service exposure to noise-and his current hearing loss.

The Board acknowledges that the Veteran has contended that his current hearing loss is etiologically linked to exposure to acoustic trauma he incurred while on active duty.  In this regard, the Board notes that in order for the Veteran's claim of service connection to be granted, the record would have to contain competent and credible evidence linking his current hearing loss to his military service.  As discussed above, however, the VA examiner considered the Veteran's contentions as well as the available medical evidence in specifically concluding that it was less likely than not that any current hearing loss was etiologically linked to service, including to his in-service exposure to acoustic trauma.  The examiner offered a clear explanation for her opinions, relying on the Veteran's medical history and the examiner's medical expertise, as well as current medical knowledge, in concluding that any connection between the Veteran's currently diagnosed hearing loss and service was doubtful.

Furthermore, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter, such as an etiological relationship between current hearing loss and military service.  See Bostain, 11 Vet. App. at 127.  As noted above, the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service).  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person 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).  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination 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.  

However, relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking the current disability to service.  The Board is satisfied that the VA examiner's opinions are adequate for deciding this appeal.  The VA examiner's August 2008 and September 2012 medical opinions, which are based on the entire record, including the Veteran's own history, is that the Veteran's hearing loss is not at least as likely as not related to military service.  Because the VA examiner's opinions are not controverted by any other medical evidence of record, and in light of the foregoing analysis and the underlying facts, the Veteran's service connection claim for hearing loss must be denied.

The Board thus finds that the preponderance of the evidence is against the Veteran's claim for service connection for hearing loss.  The Board acknowledges that the Veteran currently experiences hearing loss.  However, there is no credible evidence indicating that his hearing loss began during service or that he has experienced a continuity of symptomatology since service.  In this regard, the Board observes that the Veteran himself has not contended that his hearing loss began in service and continued to the present.  There is simply no evidence of a continuity of symptomatology from the Veteran's time on active duty to the present.

In reaching its 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 of service connection, that doctrine is not helpful to the Veteran.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for hearing loss is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs