Citation Nr: 1304853 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-11 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who had active duty service from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in February 2009. A statement of the case was issued in January 2010 and a substantive appeal was received in February 2010. Additional evidence was submitted following the issuance of the statement of the case. This evidence was not accompanied by a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. However, as this information is not relevant to the issue of entitlement to service connection for bilateral hearing loss, the Board finds that a remand for initial RO consideration is not required prior to addressing such claim. The Board has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). FINDING OF FACT The Veteran's hearing loss disability is not causally related to his active duty service, either by incurrence during service or by aggravation of any preexisting hearing loss disability. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 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 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in a December 2007 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in December 2007, which was prior to the August 2008 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The December 2007 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, 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. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA medical records are associated with the file. Additionally, the Veteran was afforded a VA examination in May 2008. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic disability during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss (organic disease of the nervous system), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The issue before the Board involves a claim of entitlement to service connection for bilateral hearing loss. For the purpose of applying the laws administered by VA, impaired hearing will be considered 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. 38 C.F.R. § 3.385. The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385...For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. The Veteran maintains that his hearing was damaged by artillery fire in Vietnam, and that his hearing loss began in July 1968, during service. The record reflects that the Veteran's hearing loss currently meets the regulatory thresholds to be considered disabling. A May 2008 audiological examination revealed auditory thresholds of greater than 40 decibels for several of the relevant frequencies in each ear. The only remaining question is whether the current hearing loss is related to the Veteran's service. VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures 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. The audiological evaluation at the Veteran's May 1967 pre-induction examination, shows the following puretone thresholds, in decibels: HERTZ 500 1000 2000 4000 RIGHT 20 (5) 5 (-5) 15 (5) 40 (35) LEFT 20 (5) 5 (-5) 0 (-10) 40 (35) Hearing at 3000 Hertz was not measured. The Board notes that this report suggests the existence of hearing loss disability in both ears at the 4000 Hertz frequency. If the audiometric readings were reported according to ASA standards, identified by the numbers not in parenthesis, then the Veteran would have a hearing loss disability upon entrance into service. See 38 C.F.R. § 3.385. Therefore, the presumption of soundness would not apply, and service connection may not be granted on the basis of in-service causation of hearing loss. However, if the audiometric readings were reported in ISO units, then the results would not show a hearing loss disability meeting the 38 C.F.R. § 3.385 standard. Thus, the Board can presume that the Veteran's hearing was effectively sound at entrance to service to the extent shown by the entrance examination report. Recognizing that the entrance audio results do not expressly state whether they were reported in ASA or ISO units, the Board has considered both possibilities to afford the Veteran the most advantageous analysis. However, under either analysis the probative weight of the evidence is against finding that any hearing loss was caused or aggravated during service. On the audiological evaluation upon separation in July 1969, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 4000 RIGHT 15 5 0 10 LEFT 5 0 0 30 Hearing at 3000 Hertz was not measured. The Board notes that neither ear's hearing threshold met the criteria for hearing loss disability for VA purposes at separation. In fact, the Board notes that these numbers actually suggest that the Veteran's hearing acuity improved. This clearly is not indicative of causation or permanent aggravation of any hearing loss disability during service, and presents no support for the Veteran's claim. The Veteran's STRs show no complaints of, treatments for, or diagnoses of anything pertaining to his ears while in service. The July 1969 service separation examination report shows that the Veteran denied hearing loss at that time. Additionally, the Board notes that the Veteran's occupational specialty in service was a cook, as noted on his DD-214. This specialty is not one typically associated with acoustic trauma. In light of the above, there is no contemporaneous evidence of causation or hearing loss disability nor any increase in severity of any hearing loss disability during service or shortly thereafter. Moreover, on VA audiological examination in May 2008, the Veteran reported having difficulty understanding speech in quiet and in noise. He reported military noise exposure including combat noise and noise in the kitchen while cooking, as well as civilian occupational noise exposure, which included his 38 years in industrial work, and recreational noise exposure, to include hunting and chainsaw use. Upon audiometric examination, the Veteran was diagnosed with mild to moderately severe high frequency sensorineural hearing loss in both ears. The examiner stated that the Veteran's hearing loss was not related to noise exposure during service, but was more likely related to occupational and recreational noise exposure since that time. The examiner explained that because the Veteran's mild hearing loss was no worse at separation than at enlistment, and because the loss was not at disabling levels at either time, the Veteran's hearing loss is not related to his service. There is no other competent medical opinion of record contradicting the medical analysis of the May 2008 audiology examination report. No competent medical evidence suggests any basis for causally relating the Veteran's hearing loss to his military service nor does any other medical opinion suggest any basis for finding in-service permanent aggravation of any pre-existing hearing loss. The Board notes that there is also no medical documentation of the presence of hearing loss within one year of the Veteran's discharge which would allow for a grant of service connection on a presumptive basis. The May 2008 VA examination shows the first post-service evidence of a hearing loss disability. This evidence is almost 40 years after service. The Board acknowledges the language of the Court in Hensley. However, the Board reads that language as basically directing that in a case where there is evidence of some decrease in hearing acuity during service, that consideration be given to a nexus to service. It is noteworthy that the Hensley language appears to envision a situation where the requirements for hearing loss disability are met several years after service, whereas in the present case it appears that the requirements for hearing loss disability were not met for a number of years after service. The Hensley case also recognized the possibility that the hearing loss might be related to intercurrent causes. In the present case, there is also some evidence of post-service noise exposure, including 38 years in industrial work. In other words, the facts of the present case appear to differ somewhat from those in Hensley. The Board has also considered the Veteran's lay testimony, and acknowledges the Veteran's sincere belief that his hearing loss is related to noise exposure during service. In the Veteran's substantive appeal, he stated that given the extreme levels of noise he was exposed to during service, he believes that his entrance and/or separation examination hearing tests may be inaccurate. He explained that he has noticed hearing problems from the time he was sleeping in a test that was in front of artillery fire, which he stated has continued to get worse. The Board also acknowledges the Veteran's statement that his occupation post-service was not in a noisy environment and that the safety rules required that everyone wear ear plugs, but that in service, he was exposed to artillery fire which made his ears ring and he was never provided with hearing protection. In assessing the credibility of the Veteran's statements, the Board observes that he did not report any complaints of hearing loss during service although he had the opportunity to do so. Available service treatment records document other medical problems, but do not reference any hearing loss complaints. Moreover, the Board views it as highly significant that the Veteran checked the appropriate box to expressly deny hearing loss at the time of his separation examination. This is totally inconsistent with his current assertions that he has experienced hearing loss since being exposed to artillery acoustic trauma during service. This diminishes the credibility of his current statements first made many years after the fact during the course of seeking monetary benefits. The Board is unable to find the Veteran's assertions of hearing loss beginning in service and continuing to the present time to be credible. After a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for bilateral hearing loss is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs