Citation Nr: 1305356	
Decision Date: 02/13/13    Archive Date: 02/21/13

DOCKET NO. 11-19 655	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The appellant served on active duty for training (ACDUTRA) from January to July 1960 and served in the U.S. Army Reserve until August 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and February 2009 rating decisions of the Baltimore RO.

In a substantive appeal received in July 2011, the appellant indicated that he wanted a local hearing with a Decision Review Officer (DRO); however, he failed to appear for the scheduled hearing. Therefore, the hearing is deemed withdrawn.

In July 2012, the Board remanded the issue for further development.

The Board has reviewed the contents of the appellant's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in his claims file.

The 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

Bilateral hearing loss was not incurred in or as a result of active duty or active duty  for training. 


CONCLUSION OF LAW

The criteria for the establishment of service connection for bilateral hearing loss are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 , 3.385 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when 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. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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 38 C.F.R. § 3.159(b)(1).

A March 2008 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection; how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). These letters were provided to the Appellant prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant was also advised of the status of development of his claim by letter dated in July 2008. 

VA has a duty to assist a in obtaining evidence necessary to substantiate their claims. The claims file contains reports of post-service medical treatment and reports of July 2008 and August 2012 VA audiological examination. VA has a duty to ensure the resulting medical opinions are adequate. Barr v. Nicholson, 21 Vet.App.303, 312 (2007). Although the July 2008 VA examination was not conducted with a review of the claims folder, it is nonetheless significant as it shows the then-current state of the appellant's claimed disorder as noted by the August 2012 VA examiner who conducted the examination with a review of the claims folder. 

The applicable duties to notify and assist have been satisfied. The appellant was requested to provide clarifying information as to his dates and duties during his Army Reserve tenure in the 1960-1964 time frame, but he responded in October 2012 that he could not recall these dates. To the extent that there is such information of record, in October 2008, the National Personnel Records Center (NPRC) forwarded the appellant's January to July 1960 service treatment records (STRS) to VA, and in September 2012 again searched its files but found no further evidence other than the appellant's personnel records. 

There is sufficient evidence on file in order to decide this appeal. and the Appellant has been given ample opportunity to present evidence and argument in support of his claims. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the appeal has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012).


Merits of the Claim

The appellant contends that he incurred bilateral hearing loss at some point subsequent to his initial period of active duty for training from January to July 1960. Stated alternatively, he does not contend, nor does the evidence show, that he incurred his claimed disorder during or as a result of what is commonly referred to as basic training. Instead, he argues that he was a member of a rifle team during the various periods of his active duty for training and inactive duty for training (i.e., commonly referred to as "weekend drills" and the two week periods of annual training), and that it was during these periods that he was treated by a physician in the early 1960's for hearing loss. 

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 
	
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 - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet.App. 110 (2002). 

In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet.App. 223 (1992).

A disorder may also be service connected if the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.App. 488 (1997); see Barr v. Nicholson, 21 Vet.App. 303 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet.App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet.App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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.

A lack of evidence that a claimant exhibited hearing loss during service is not fatal to a claim for service connection. 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).

As noted, the appellant had a period of initial active duty for training from January through July 1960. Although the appellant's military occupational specialty upon completion of his training was in the automotive maintenance field, a letter of commendation upon completion of training indicates that he served as an administrative clerk in the installation signal office as a clerk typist and courier.

The appellant underwent a pre-discharge physical examination in June 1960, and indicated on a "Report of Medical History" questionnaire that he did not then have, nor ever had "ear . . . trouble." The accompanying report of physical examination indicates that the appellant's bilateral hearing was assessed as normal by the whispered hearing test. His PULHES profile as to hearing capability was assessed as being of "high" level, or "1." Odiorne v. Principi, 3 Vet. App. 456 (1992); (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).

The appellant's service personnel records from his subsequent periods of reserve service do not indicate that he was assigned to a rifle competition team as he alleged. Instead, while he was assigned to infantry units during his periods of reserve service, his record of personnel assignments indicate that he was a company clerk, specifically noted and as indicated by his military occupational specialty number. 

In support of his claim, the appellant submitted a January 2008 letter authored by M. Effron, M.D., who reported that he began treating the appellant for various disorders beginning in 2004 - i.e., over 40 years after both basic training and the appellant's discharge from the Army Reserve. 

As noted, the appellant underwent a VA audiological examination in July 2008. Although it was not accompanied by a review of the claims folder, clinical findings indicated that the appellant did not then have hearing loss as defined by VA regulation. 38 C.F.R. § 3.385. Although the claims folder was not reviewed by the examiner, and to that extent the report is of diminished probative value as it bears upon the question of service incurrence, that the appellant did not then have hearing loss as defined by VA regulation is significant as noted below. 

In a June 2009 letter, Mark Harrison, ACA, NBC-HIS (a certified hearing aid specialist) reported that he had screen the appellant for hearing scores, and that his hearing loss had a "consistency with sound trauma." Mr. Harrison observed that it "is safe to say, there may be some issues with sound trauma and [the appellant's] military experience." However, Mr. Harrison did not relate what knowledge he had of the development of the appellant's disorder, military experience, or what were the nature of the "issues" experienced by the appellant.

In November 2010, the appellant submitted a contemporaneously signed letter from Dr. Effron, with accompanying audiologic report authored by audiologist C. Breslau. She reported that the appellant had mild to moderate presbycusis bilaterally. "Presbycusis" is defined as "a progressive, bilaterally symmetrical perceptive hearing loss occurring with age." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1352 (27th ed.1988). The audiologist did not note any information in the that portion of the report detailing "case history," including tinnitus, noise history or "other." 

In August 2012, audiologist Breslau reported November 2010 test results which indicated that the appellant had bilateral hearing loss, as defined by 38 C.F.R. § 3.385 at the 3000 hertz level. However, she did not clarify her earlier medical assessment that the appellant had presbycusis. 

Pursuant to the Board's July 2012 remand, the appellant underwent a VA examination in December 2012 conducted by the chief of a VA audiology and speech clinic. The examination was accompanied by a review of the claims folder. Although the appellant was diagnosed as having bilateral hearing loss, the examiner assessed its source as presbycusis - i.e., age related hearing loss. Significantly from the examiner's perspective, the appellant's 2008 hearing examination was normal, which suggested that the appellant's hearing was also normal at least to the time of his separation from the Army Reserve in 1964. 

The preponderance of the evidence is against the claim. Apart from the appellant's own contention, the only evidence in support of the claim is that authored by Mr. Harrison in June 2009. The opinion has little probative value. Mr. Harrison indicated that there "may be some issues" between sound trauma and the appellant's military involvement, but he provided no information as to what "issues" may have been present; nor does his use of the term "may" admit any information of substance. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (where the Court observed that a physician's opinion that the veteran's current symptomatology "may" be related to service also implied that such a connection "may not" be made). 

The appellant's essential contention has been fully investigated as mandated by Jandreau, but found without merit. Further, the appellant is not competent to relate his disorder to any incident of military service from approximately 40 years earlier. See generally Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding presumption of service connection for colon disability to be rebutted by clear and convincing evidence in the form of absence of post-war medical records of treatment for colon-related problems for period of over 40 years). Although he reports that he was treated by a physician in 1963 for hearing loss, he has also related that he does not have records of this treatment and he is unaware of his whereabouts. Given this factor, there is no evidence to gauge as to what symptoms the appellant was then experiencing if any, or their severity or noted source. Moreover, and as noted by the 2012 VA examiner, there is suggestive evidence to indicate that the appellant's hearing was normal as late as July 2008 and to the extent that any source was identified, it was the appellant's age. This etiology was noted by both the 2012 VA examiner and audiologist Breslau. 



ORDER

Service connection for bilateral hearing loss is denied. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs