Citation Nr: 1305040 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 08-32 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for bilateral hearing loss, including as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from April 1969 to April 1971, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2009, the Veteran testified before the undersigned Veterans Law Judge and a copy of the hearing transcript is associated with the record. In January 2011, the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 memorandum decision, the Court vacated the Board's January 2011 decision to deny service connection for bilateral hearing loss disability and remanded the matter for readjudication consistent with the Court's decision. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim, which includes VA treatment records obtained through CAPRI (Compensation and Pension Records Interchange), received in May 2012. The case was remanded by the Board in October 2012 for additional development consistent with the Court's directives. It has been returned to the Board for appellate review. FINDING OF FACT Bilateral hearing loss disability is not etiologically related to active service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active service including as secondary to herbicide exposure. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in May 2007 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The May 2007 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. The Veteran's service treatment records (STRs) and VA treatment records have been associated with the claims folder. The Veteran has been afforded a VA medical examination in response to the claim. As an August 2007 VA audiological evaluation was deemed inadequate by the Court, the Board remanded the matter for an addendum to include a medical opinion as to the likelihood that the Veteran's hearing loss disability was related to documented in service noise exposure. The examiner was instructed to provide a complete rationale for any opinion provided. This opinion was provided in October 2012. The Board has reviewed the opinion and finds that it is adequate to address the critical issue at hand, and that another examination is not needed. The examiner supported his conclusions with an adequate rationale. As such, the AOJ has developed the case to the extent possible and no further development in terms of obtaining medical records, examinations, or opinions, is necessary. 38 U.S.C.A. § 5103 Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim. The Board is also unaware of any such evidence. In sum, any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In reviewing the evidence, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). Bilateral hearing loss is not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Veteran filed his claim for hearing loss disability in March 2007. He has urged that noise exposure during his military service occurred when he had to work with and around heavy artillery. He contends alternatively that his in-service exposure to herbicides while in the Republic of Vietnam caused his bilateral hearing loss. He reported that he received no treatment for hearing loss in the military. He testified before the undersigned that he spend a whole year assigned to cannons and most of the blasts knocked him down. He felt that the noise he was exposed to that year was extensive. He submitted photographs showing him with the guns he fired in Vietnam. He also submitted a buddy statement from C.L.A., in June 2007. The Veteran testified that he believed he now had hearing loss related to this period of time in service. He also reported that he worked for many years following service as a welder. He described this as a somewhat noisy environment but he reported that he was provided ear protection. The Veteran did not specifically testify that hearing loss had been present since service. The Board finds for the following reasons that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss disability, including as secondary to herbicide exposure. The Board acknowledges initially that the Veteran's honorable active service included a tour of duty in the Republic of Vietnam from September 1969 to September 1970. His service personnel records show that he served as a cannoneer and ammo handler for several U.S. Army artillery units while in Vietnam. Thus, the Board finds that the circumstances of the Veteran's active service included in-country duty in Vietnam. Because the Veteran had in-country duty in Vietnam, his active service meets the regulatory definition of Vietnam service found in 38 C.F.R. § 3.307(a)(6)(iii) and upheld by the Federal Circuit in Haas. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). Because the Veteran had active service in Vietnam, his in-service herbicide exposure is presumed. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran's in-service herbicide exposure is presumed based on his active service in Vietnam, bilateral hearing loss is not among the diseases for which service connection is available on a presumptive basis due to in-service herbicide exposure. Id. Further, following VA Agent Orange Registry exam in August 2006, the VA examiner opined that the Veteran's bilateral hearing loss was not the result of Agent Orange exposure. Thus, the Board finds that service connection for bilateral hearing loss is not warranted on a presumptive service connection basis due to in-service herbicide exposure. Furthermore, the Veteran finally is not entitled to service connection for bilateral hearing loss disability on a direct service connection basis. The Board recognizes that the Veteran's MOS was basic field artillery and he served with several Army artillery units during active service, including on a tour of duty in Vietnam. The Veteran's service personnel records do not show that he was awarded any combat citations or awards for combat service, however, including his tour of duty in Vietnam. These records show instead that he participated in the Vietnam Summer-Fall Campaign and was awarded the Vietnam Service Medal and Republic of Vietnam Campaign Medal w/60 Device. His in-service duties in Vietnam included cannoneer and ammo handler. He was assigned to Battery B, 7th Battalion, 9th Artillery and to Battery B, 1st Battalion, 27th Artillery while in Vietnam. The Veteran testified credibly in July 2009 that he was exposed to significant in-service acoustic trauma during his tour of duty in Vietnam as a member of U.S. Army gun crews responsible for firing 155 mm howitzer guns and other large artillery pieces. He also submitted the aforementioned buddy statement from a fellow service member who had served with him in Vietnam. In this statement, the Veteran's buddy reported that the Veteran had served as his assistant gunner on a 155 mm howitzer with Battery B, 1st Battalion, 27th Artillery in Vietnam. The Board finds that the Veteran had active honorable combat service in Vietnam between September 1969 and September 1970. See 38 U.S.C.A. § 1154(b). The Board observes in this regard that § 1154(b) does not create a presumption of service connection for any disease or injury alleged to have been incurred during combat service. Instead, § 1154(b) eases the evidentiary burden for combat Veterans to establish that a claimed in-service disease or injury was incurred during combat service. In other words, although the Board finds that the Veteran served in combat in Vietnam and was exposed to significant in-service acoustic trauma, and although the Board also accepts the Veteran's statements that he experienced significant in-service acoustic trauma as credible because such statements are consistent with the facts and circumstances of his Vietnam combat service, more is required in the form of competent medical and lay evidence relating his current bilateral hearing loss disability to active service before service connection for bilateral hearing loss can be awarded. Id. There is no indication in the Veteran's service treatment records that he complained of or was diagnosed as having bilateral hearing loss at any time during active service, including during his tour of duty in Vietnam. The Veteran's service treatment records show instead that, at his pre-induction physical examination in October 1968, his pure tone thresholds, in decibels, were as follows: Hertz (Hz) 500 1000 2000 3000 4000 Right 0 5 5 X 0 Left 5 5 5 X 5 The Veteran denied all relevant medical history. He was not treated for any complaints of bilateral hearing loss at any time during active service, including during his tour of duty in Vietnam. At his separation physical examination in March 1971, the Veteran's pure tone thresholds, in decibels, were as follows: Hz 500 1000 2000 3000 4000 Right 0 0 5 X 5 Left 15 5 5 X 10 He again denied all relevant medical history, including any in-service medical history. It appears that, following service separation in April 1971, the Veteran first complained of bilateral hearing loss when he was seen on VA examination in August 2006, more than 35 years later. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The remaining post-service medical evidence shows that, although the Veteran currently experiences bilateral hearing loss, it is not related to active service. On VA outpatient treatment in May 2007, the Veteran's complaints included gradual hearing loss over the previous 10-12 years. He reported that he had been exposed to artillery and rifle fire during 2 years in the Army and had not used ear protection at that time. He also reported that, after service, he had worked for the railroad for 25 years but had used ear protection in this post-service job. The Veteran's pure tone thresholds, in decibels, were as follows: Hz 500 1000 2000 3000 4000 Right 25 10 20 50 55 Left 15 5 30 35 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 92 percent in the left ear. The diagnosis was normal hearing through 2000 Hertz sloping to moderate sensorineural hearing loss bilaterally. On VA audiology examination in August 2007, the Veteran's complaints included bilateral hearing loss. He reported difficulty hearing with background noise. The VA examiner reviewed the Veteran's claims file, including his service treatment records. The Veteran reported serving in the artillery in Vietnam and being exposed to acoustic trauma from 155 mm howitzers without the use of hearing protection. The Veteran also reported that, after service, he had worked for the railroad in construction work but had worn hearing protection. The Veteran's pure tone thresholds, in decibels, were as follows: HZ 500 1000 2000 3000 4000 RIGHT 25 15 20 50 55 LEFT 25 10 30 40 40 Speech audiometry revealed speech recognition ability of 92 percent in each ear. The VA audiologist noted that the Veteran's hearing had been normal bilaterally at his pre-induction physical examination. The examiner also noted that the Veteran's hearing had been within normal limits bilaterally at his separation physical examination as well. This VA examiner opined that, because the Veteran's hearing had been normal at his separation from service, his current hearing loss was not caused by his in-service noise exposure. The diagnoses included normal hearing in the right ear through 2000 Hertz with moderate to moderately severe sensorineural hearing loss from 3000 to 8000 Hertz and normal hearing in the left ear through 1500 Hertz with mild to moderate sensorineural hearing loss from 2000 to 8000 Hertz. In the Memorandum Decision, the Court found this VA examination to be inadequate because the sole reason the examiner gave for the negative nexus opinion was that the separation examination showed normal hearing. The Court noted that such a bald statement without adequate reasoning rendered the examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Hensley v. Brown, 5 Vet .App. 155 (1993). Thus, when the case was remanded by CAVC to the Board, the Board in turn remanded the matter and ordered that an addendum to the examination be obtained. The addendum report obtained by the AMC was dated in October 2012. This report reflects the VA audiologist's opinion again that the separation hearing test was completely normal and therefore the Veteran's current hearing loss was not caused by military noise exposure. The rationale offered was that the induction examination and separation examination revealed normal hearing in both ears, and a VA examination in May 2007, 38 years after separation, revealed the aforementioned degree of sensorineural hearing loss bilaterally. The examiner explained that it was important to note that, with a normal separation audiogram, it would appear that the Veteran's current hearing loss would have occurred after his time in the military. The examiner further explained that noise damage to the hearing occurs at the time of the exposure and does not deteriorate later unless for other reasons or additional noise exposure. The Veteran submitted an audiogram report from VA dated in November 2012 showing ongoing bilateral hearing loss. The preponderance of the evidence is against the claim for bilateral hearing loss disability. The record does not show that he has had continuous hearing loss since service. Rather, the record reflects initial complaints and findings of hearing loss in a record dated in 2006, 35 years following service. The diagnosis of sensorineural hearing loss was made over three decades after service separation. The VA treatment records added to the record in May 2012 through the Virtual VA system do not support the theory that there was continuous hearing loss since service because they contained no complaints relating to hearing loss. The Veteran was treated at a VA primary care clinic in 1998 and 1999 for multiple complaints and he did not report hearing loss, even though he was treated on one occasion for a burn of the right ear. There was no intervening treatment again until 2006, when hearing loss is initially reported. Moreover, the Veteran has established that he had no treatment for hearing loss other than that with VA beginning in 2006. The Veteran is competent to testify as to observable symptoms such as hearing difficulty. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno, supra. Although the Board notes that a layperson is competent to report on the onset and continuity of current symptomatology, it observes that the Veteran does not actually argue that there was such continuity since service. Rather, he simply urges that the current hearing loss is related to noise exposure in service. When questioned by the undersigned why he felt his hearing loss was related to service, he stated that it was because he had been exposed to cannon noise in service. He did not actually allege continuity of symptomatology and, in fact, a close inspection of the record does not support that this is his assertion. Again, the Board cites to his initial report of hearing loss in 2007 having been present for 10 to 12 years. The VA opinion contained in the addendum is afforded considerable weight in the determination that the Veteran's current hearing loss disability is not related to his service. In the addendum report, the examiner considered the Veteran's hearing loss through the previous thorough examination which included consideration of his reported history of hearing difficulties. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting a veteran's position); Lee v. Brown, 10 Vet. App. 336, 338 (1997) (an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words). The Board finds this opinion to be highly credible and probative of the issue of nexus, or the lack thereof. While the Board has considered the Veteran's contentions, it finds them less probative as to the issue of the etiology of the current bilateral hearing loss. The treatment records following service do not provide any nexus between the current disability and service. Rather, they reflect that the Veteran initially sought treatment many years after service, and the resultant assessment was that the condition was not related to exposure to Agent Orange exposure. These records are considered to have no significant probative value as to establishing a nexus between current disability and service. Again, the Board notes that, generally, the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Of course the Board recognizes in this regard that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Assuming, arguendo, that the Veteran does in essence urge that he has had hearing loss since service, his statements in this regard are found to be not credible. The passage of 35 years between discharge from service and the first complaint, which in fact showed only reported hearing loss for 10 to 12 years prior to the diagnosis of hearing loss in 2007, and the lack of complaints in the record at an earlier date, weigh against a finding of continuity of symptoms since service. Accordingly, based on the evidence and analysis above, the Board finds the criteria for service connection for a hearing loss disability are not met; the claim must therefore be denied. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to service connection for bilateral hearing loss disability, including as secondary to herbicide exposure, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs