Citation Nr: 1305574	
Decision Date: 02/15/13    Archive Date: 02/21/13

DOCKET NO.  10-34 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for a left knee disability.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel

INTRODUCTION

The Veteran had active service from April 1969 to March 1971.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, dated in November 2009 and February 2010.  

The Veteran testified before the undersigned Veterans Law Judge at the RO in October 2012.  A transcript of the hearing has been associated with the record.

The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Bilateral hearing loss disability was not manifest in service or within one year following discharge, and is unrelated to service.


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

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 & Supp. 2012); 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 claimant and his representative 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 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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.  VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 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.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  

A letter dated in October 2009 discussed the evidence necessary to support a claim for service connection.  The Veteran was invited to submit or identify relevant evidence.  The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence.  This letter also discussed the manner in which VA determines disability ratings and effective dates.

Subsequent letters advised the Veteran of the status of his claim.

The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  

With respect to VA's duty to assist, the Board notes that service treatment records, VA treatment records, and private treatment records have been associated with the claims file.  Records have also been obtained from the Social Security Administration (SSA).  The Veteran has been afforded a hearing before the undersigned.  A VA examination was most recently conducted in August 2011.  The Board finds that the examination report is adequate in that the examining physician reviewed the record, interviewed the Veteran, and performed an appropriate examination prior to providing her conclusions.  The examination report of record is thorough and consistent with contemporaneous treatment records, and adequately addresses other evidence of record and responds to the questions posed in this appeal.  The Veteran has not identified any additional evidence or information which could be obtained to substantiate his claim.  The Board is also unaware of any such outstanding evidence or information.  

As noted, the Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issues on appeal during the hearing and asked questions specifically regarding the elements necessary to establish the benefits sought.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).


For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303.  To establish a right to compensation for a present disability, a Veteran must show: "(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, 1167 (Fed. Cir. 2004).   

Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology.  See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  

Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).  However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).

Service incurrence or aggravation of diseases of the central nervous system (e.g., sensorineural hearing loss) may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b). 

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.

The Board notes that the Court has observed that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Service treatment records reflect that on pre-induction examination in February 1969, the Veteran denied ear trouble and hearing loss.  Audiometric testing revealed the following puretone thresholds:





HERTZ



500
1000
2000
3000
4000

Right
5
0
0
Not tested
40

Left
10
5
0
Not tested
15


On separation examination in October 1970, audiometric testing revealed the following puretone thresholds:





HERTZ



500
1000
2000
3000
4000

Right
0
5
0
5
Not tested

Left
10
10
15
15
Not tested


The examiner did not list any findings in the summary of defects and diagnoses, and the Veteran was deemed qualified for separation.

In March 1971 the Veteran certified that there had been no change in his medical condition since his separation examination.  

Regarding the evidence after service, the record reflects that on examination for the Social Security Administration in December 2004, the Veteran reported hearing loss of 15 to 20 years' duration.  The diagnosis was moderate to severe high frequency sensorineural hearing loss bilaterally.  

On VA fee basis examination in October 2009, the Veteran reported that onset of symptoms dated to active duty.  The examiner noted that the Veteran had been in artillery during service.  She indicated that pure tone audiometry and speech recognition testing resulted in unreliable responses and that no determination could be made in regard to the Veteran's hearing based on those results.  She further stated that a diagnosis of hearing loss could not be made based on the examination.

In a November 2009 rating decision, the RO granted service connection for tinnitus.  In its discussion of that issue, it specified that exposure to acoustic trauma during service was established.

An additional VA fee basis examination was carried out in June 2010.  The Veteran reported exposure to excessive noise during service.  He noted that he had difficulty hearing and that he had been given hearing aids by VA.  He reported that following service, he worked as a gas company pumper for 35 years with hearing protection.  He denied exposure to noise aside from that which occurred during service.  The following puretone thresholds were elicited on audiometric testing:





HERTZ



500
1000
2000
3000
4000
Average
Right
40
45
55
85
90
69
Left
45
40
75
85
85
71

Speech recognition scores were 32 percent in the right ear and 20 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss.  The examiner concluded that it was at least as likely as not that hearing loss was related to acoustic trauma during service.

In June 2010, the RO sought a supplementary opinion.  In July 2010, a VA audiologist examined the Veteran and reviewed the claims file and medical records.  He noted that the Veteran reported both military and occupational noise exposure.  Audiometric testing revealed the following puretone thresholds:








HERTZ



500
1000
2000
3000
4000
Average
Right
30
35
45
75
80
59
Left
30
40
60
70
80
63

Speech recognition scores were 76 percent in the right ear and 82 percent in the left.  The examiner indicated that the Veteran's hearing was within normal limits at separation.  He stated that it was not possible to reconcile any opinion given by a private audiologist because they were not supplied with the claims file and had no access to separation hearing tests.  He noted that scores he obtained on testing were within test/retest variability of an audiometric test conducted by VA in May 2010.  He indicated that the Veteran had to be reinstructed several times, resulting in improved thresholds and speech scores.  He noted that it was not possible to reconcile differing speech scores from the private sector when patient cooperation was suspect due to unknown testing instructions.

In August 2010, the July 2010 examiner indicated that hearing was within normal limits on separation and concluded that hearing loss was not a result of service.  

An additional VA examination was conducted in August 2011.  The Veteran's history was reviewed.  Audiometric testing revealed the following puretone thresholds:





HERTZ



500
1000
2000
3000
4000
Average
Right
35
35
45
70
80
58
Left
20
35
65
80
80
65

Speech recognition scores were 80 percent for the right ear and 84 percent for the left.  The diagnosis was mild to severe sensorineural hearing loss bilaterally.  The examiner noted that the Veteran's hearing was within normal limits at separation, with no significant shift in hearing sensitivity noted during service.  She pointed out that research indicated that previously noise-exposed ears are not more sensitive to future noise exposure and that hearing loss due to noise does not progress in excess of that expected from aging once the exposure to noise is discontinued.  She stated that any hearing loss measured in the future could not have been caused by past exposure to high intensity noise.  She therefore concluded that it was not likely that the Veteran's hearing loss was related to service.  

Upon careful review of the evidence, the Board has concluded that service connection is not warranted for bilateral hearing loss disability.  As noted above, VA has accepted that the Veteran experienced acoustic trauma during service and acknowledges his report that he experienced symptoms of difficulty hearing at that time.  However, objective audiometric findings fail to show significant decreased hearing acuity during service or for many years thereafter.  The earliest post-service complaint for any problems with the Veteran's hearing acuity (and diagnosis) dates to a December 2004 examination carried out pursuant to a claim for SSA benefits.  At that time, the Veteran endorsed a 15 to 20 year history of hearing loss.  Notably, that would place onset of hearing loss in 1984, at the earliest.  This is many years following the Veteran's separation from service; therefore, the presumption for service connection for sensorineural hearing loss is not applicable.  To grant service connection in this case, the evidence must demonstrate a nexus between the current diagnosis and the Veteran's service.

The Board acknowledges that the June 2010 fee basis examiner concluded that it was at least as likely as not that hearing loss was related to acoustic trauma in service.  However, he provided no rationale for this opinion.  Therefore, the Board has no context in which to weigh the opinion, and thus no basis to afford the opinion greater weight than another.  On the other hand, the August 2011 VA examiner concluded that it was not likely that hearing loss was related to service.  In reaching that conclusion, she considered previously rendered opinions, to include that provided by the June 2010 fee basis examiner.  In essence, the August 2011 examiner provided a reasoned opinion, based on complete review of the record, interview, and examination.  She pointed out that the Veteran's hearing was normal on discharge and that there was no significant shift in hearing acuity during service.  She also acknowledged acoustic trauma in service, but ultimately concluded that the current hearing loss was not related to service.  

In assigning high probative value to the August 2011 opinion, the Board notes that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact.  Rather, she provided a full discussion of the Veteran's documented history and of his own reported history before ultimately concluding that the Veteran's hearing loss was not related to service.  The Board thus finds the most recent VA examiner's opinion to be of greater probative value than the Veteran's statements, or the unsupported opinion provided by the June 2010 fee basis examiner.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Board has considered whether self-reported continuity of symptomatology of hearing loss dating back to service might be sufficient to warrant service connection.  In this regard, the Veteran is certainly competent to report that he experiences difficulty hearing.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  However, even where a Veteran asserts continuity of symptomatology since service, he is not necessarily competent to establish a nexus between the continuous symptomatology and the current claimed condition.  See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001).  Here, the Veteran has reported the onset of hearing difficulty in service, but the Board must also consider that he is recalling events that occurred decades ago, and that he has also described the onset of tinnitus in service as well, which complicates the question of the etiology of his hearing difficulty.  The Board further notes that there are conflicting statements regarding onset of hearing difficulty.  On evaluation for SSA purposes in 2004, the Veteran reported onset of hearing problems 20 years previously, which would place onset in 1984, many years following his separation from service.  In sum, the Board finds the opinion of the competent August 2011 VA examiner to be the most probative evidence of record on the question of whether the Veteran's current hearing loss disability is related to service.  As noted, the August 2011 VA examiner considered his statements as to his history, but also considered the results of objective audiometric testing that occurred in service, and the nature and severity of his current hearing loss disability.  

In short, for the reasons and bases set forth above, the Board concludes that the claim of entitlement to service connection for bilateral hearing loss disability must be denied.  The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. 


ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.


REMAND

The Veteran seeks service connection for a left knee disability.  He contends that his knee was injured during service when he was helping a friend repair a tire and the rim jumped off and struck his knee.  He has indicated that he went to sick bay and reported the injury.  He states that he had problems with instability of his knee about two months after he separated from service.  

The record contains statements by friends and siblings indicating that when the Veteran returned from service, he had problems with his knee.  

On VA examination in August 2010, the examiner concluded that the Veteran's current left knee condition was not likely related to service.  He reasoned that there was no evidence of any injury to the left knee and no evidence of treatment during service.  The Board notes, however, that the Veteran's competent and credible statements indicate an injury in service, and that he has submitted an individual sick slip dated in February 1971 that indicates knee trouble.  Moreover, the Veteran has also submitted statements from individuals who knew him when he returned from service, and they indicate that the Veteran had problems with his left knee when he left the Army.  Because the examiner did not account for the Veteran's lay statements, and because additional lay statements were added to the file following the August 2010 VA examination, the Board concludes that a current examination should be conducted so that an examiner might consider the credible lay contentions regarding symptoms in service and the possibility that the current knee condition might be related to disease or injury in service.

In a July 2012 statement the Veteran indicated that he had experienced pain since he hurt his knee in the Army.  He related that he had an additional injury in 1976 and that his boss told him to file for Worker's Compensation.  The Board notes that the RO attempted to obtain Worker's Compensation records in July 2012, but that it is unclear whether there was a response regarding that request for records.  On remand, the question of whether there are outstanding Worker's Compensation records should be resolved.

In light of the above discussion, the Board has concluded that additional development of the record is required.  Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate action to obtain all documents pertaining to a Worker's Compensation claim pursued by the Veteran in 1976.  All records and responses received should be associated with the claims file.  

If VA is unable to secure the above referenced records, it must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence.  38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012).
2.  Upon completion of the development directed in paragraph 1, schedule the Veteran for a VA examination to determine the etiology of any currently present left knee disability.  The claims folder should be forwarded to the examiner for review.  All indicated studies should be performed, and their results reported.  The examiner should be directed to elicit a complete history from the Veteran, to include details surrounding the documented 1971 in-service injury and the 1976 post-service injury.  The examiner is advised that the Veteran's statements of record regarding the circumstances of the in-service injury are competent and credible.  

Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that any currently present left knee disability is related to the Veteran's service.

A discussion of the reasons behind any opinions expressed must be included in the examination report, to include reference to pertinent evidence where appropriate.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  

3.  The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.

4.  Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented.  Any inadequacies should be addressed prior to recertification to the Board.

5.  Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.
 
The case should then be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of the veteran's claim.  The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs