Citation Nr: 1305602 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 12-07 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from November 1944 to November 1947, and from November 1950 to March 1952. This matter comes to the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In December 2012, the Veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). Please note this 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 The most probative evidence of record shows that the Veteran does not have hearing loss disability that was incurred in or aggravated by active duty, and it was not manifest to a compensable degree within one year of discharge from either period of service. CONCLUSION OF LAW Hearing loss was not incurred or aggravated during service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he has bilateral hearing loss due to his service. He asserts that he had an ear infection in 1945, for which he received weekly injections of penicillin between 1945 and 1946, and that his history of ear infection was noted upon his entrance into his second period of active duty. He asserts that he has hearing loss due to scar tissue on his eardrums. See Veteran's claim (VA Form 21-526EZ), received in November 2010. He further argues that there may be missing service treatment reports which are favorable to his claim that are dated around the time of entrance into his second period of active duty (i.e., November 1950). During his hearing, held in December 2012, he testified to the following: he has had five different types of hearing aids since the 1950s, following separation from service. He went into construction following separation from service. He later went into management. By the late 1950s he had concluded that hearing aids would not correct his hearing loss. His military occupation specialty did not involve exposure to loud noises. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). It is appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system and, therefore, subject to presumptive service connection. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (2012). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 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. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while 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 which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). The Veteran's service treatment reports from his first period of active duty include an entrance examination report, dated in October 1944, which notes that the Veteran had 15/15 hearing bilaterally (whispered or spoken voice was not specified). An examination report, dated in November 1945, also notes 15/15 hearing bilaterally (whispered or spoken voice was not specified). The Veteran's separation examination report, dated in November 1947, shows that the Veteran's ears were noted not to have any disease or defects, that his whispered and spoken voice test results were 15/15, bilaterally, and that his coin test results were 20/20, bilaterally. There is no medical evidence dated between the Veteran's first and second periods of active duty. The Veteran's service treatment reports from his second period of active duty include an entrance examination report, dated in November 1950, which shows that his whispered voice test results were 5/15, bilaterally. His spoken voice test results were 15/15, bilaterally. His right eardrum was noted to be scarred; his left eardrum was normal. A November 1950 report from a medical officer states that the Veteran had defective hearing, and that he had a disqualifying defect for which a conditional waiver was recommended and had been granted. In an associated "report of medical history," the Veteran indicated that he had a history of ear trouble, with a notation of "ear trouble past six years." The report notes that he had running ears in service, with whispered voice hearing test results now of 5/15 that was NCD (not considered disabling). The Veteran's separation examination report, dated in March 1952, shows that his ears and drums were clinically evaluated as normal, and that whispered and spoken voice test results were 15/15, bilaterally. As for the post-service medical evidence, it consists of a private treatment report, and a VA examination report. A private audiogram report, dated in October 2010, contains only charted results, which appear to show that the Veteran had bilateral hearing loss as defined for VA purposes at 38 C.F.R. § 3.385 (the Board will assume this report establishes bilateral ear hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385, therefore, additional development is therefore not required. See Savage v. Shinseki, 24 Vet. App. 259 (2010)). A VA examination report, dated in April 2011, shows that the examiner stated that the Veteran's claims file was not available for review. The Veteran reported that he had been treated with penicillin for fungus in his ears during service, and that he had been told that his eardrum was scarred. He further reported that his ears ran during service, and that his hearing loss began during service. He stated that during service, he had been a mailman, and later, in communications, often working with a headset on, often with 10 to 12 other people in a room. He also reported having weapons training, but he could not recall if he wore hearing protection. Following service, the Veteran stated that he had worked "in construction versus a surveyor," and later as a superintendent on sewer and water lines. He also worked in the fields, and on occasion had to operate heavy equipment with hearing protection. He owned a motorcycle for 30 years, with no other recreational noise exposure. He reported a history of two head injuries/concussions. He reported having worn a hearing aid for the past 15 years. On examination, the Veteran had bilateral hearing loss as defined for VA purposes at 38 C.F.R. § 3.385. In an addendum, dated in May 2011, the examiner stated that the Veteran's claims file had been reviewed. The examiner noted the following: upon examination, the Veteran's tympanometry was within normal limits, suggesting that the middle ear system, which includes the eardrum, is functioning properly. The Veteran's hearing loss is sensorineural. It is not conductive or a mixed hearing loss and based on that evidence, any scarring on the eardrum would have no effects, as this is a sensory loss. Additionally, the final evaluation in March 1952 showed test results of 15/15 bilaterally. It appears that there may have been an infection during service, which had resolved. Although there was hearing loss noted in 1950, the test results for the whispered voice test were normal in 1952. The examiner concluded that these facts, in addition to the current examination results, warranted the conclusion that, "[T] he Veteran's current hearing loss is less likely related to his military service." With regard to the Veteran's first period of active duty, the Board finds that service connection is not warranted. As an initial matter, the Board notes that the Veteran's service treatment reports do not contain any audiometric test results, and that whispered voice test results are entitled to little probative weight because it is widely known that those tests are insensitive to high frequency hearing loss which is the area of hearing most affected by noise exposure. See VA Fast Letter No. 10-35 (Sept. 2, 2010). Furthermore, in this case, there is nothing to show treatment for, or a diagnosis of, hearing loss during service. The Veteran's hearing was noted to be 15/15 bilaterally upon entrance into service, and 15/15 (both whispered and spoken voice) upon separation from service. The earliest medical evidence of hearing loss is dated no earlier than 2010, which is about 62 years after separation from the first period of active duty service. There is no competent medical opinion of record that links current hearing loss to the Veteran's first period of active duty service. The only competent opinion of record is the May 2011 VA examiner's opinion, and this opinion weighs against the claim. In his opinion, the examiner indicated that the Veteran's claims files had been reviewed, and the opinion is accompanied by a sufficiently detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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 therefore finds that, for the first period of active duty, the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's second period of active duty, claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). If evidence is submitted sufficient to demonstrate that a veteran's disorder pre-existed service, and underwent an increase in severity during service, it is presumed that the disorder was aggravated by service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is specific evidence that the increase in disability is due to the natural progress of the disease. Id. In this case, the Veteran's entrance examination report, and associated documents, show that his whispered voice test results were 5/15 bilaterally, and that he was found to have hearing loss which was so severe that a conditional waiver was required. This waiver was granted. Hearing loss was therefore "noted" upon entrance into service. See Crowe, supra. Therefore, the presumption of soundness does not attach, and need not be rebutted. See VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (2012). Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Id. at 296; see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (2012). The Board finds that the evidence in insufficient to show that the Veteran's hearing loss underwent an increase in disability during his second period of active duty service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In this case, the Veteran's service treatment reports indicate that the Veteran's hearing improved, i.e., although he had whispered voice test results of 5/15 bilaterally upon entrance, his hearing was noted to be 15/15 (both whispered and spoken voice) upon separation from service in March 1952. With regard to the post-service medical evidence, the earliest medical evidence of hearing loss is dated in 2010, which is over 57 years after separation from his second period of active duty. There is no competent medical or competent and credible lay evidence of record to show that the Veteran's hearing loss was aggravated by his service. The only competent medical opinion of record is the May 2011 VA opinion, and this opinion weighs against the claim. In that opinion, the examiner indicated that the Veteran's claims files had been reviewed, and the opinion is accompanied by a sufficiently detailed rationale. See Prejean; Neives-Rodriguez, supra. Accordingly, the Board finds that the evidence is insufficient to show that the Veteran's hearing loss underwent an increase in disability during his second period of active duty. Aggravation may therefore not be conceded. See 38 C.F.R. § 3.306(b) (2012). Finally, there is no competent evidence to show that sensorineural hearing loss was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). With regard to the Veteran's own contentions, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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 (Fed. Cir. 2007). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The issue on appeal is based on the contention that bilateral hearing loss was caused by service, which ended in 1952. The Veteran's statements are competent evidence to show that he experienced difficulty hearing during service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the medical evidence warrants greater probative value on the issue of whether his bilateral hearing loss is related to his service or whether there was permanent aggravation of his preexisting condition during his second period of active duty. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran's service treatment records show no evidence of hearing loss during his first period of active duty, and that he was found to have pre-existing hearing loss upon entrance into his second period of active duty. There is no competent medical or competent and credible lay evidence to show an increase in severity, or aggravation, of pre-existing hearing loss during his second period of active duty. The post-service medical records do not show the existence of hearing loss disability by VA standards prior to 2010, which is about 57 years after separation from service. A VA health care provider has issued an opinion that weighs against the claim, and there is no other competent medical opinion of record. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that he has hearing loss disability that was incurred in, aggravated by, or is otherwise related to his military service. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. 38 U.S.C.A. § 5107(b) (West 2002). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case does not appear to have been accomplished. Recent court decisions indicate that when VA fails to furnish information that is necessary to substantiate the claim ("Type One error"), such error is presumed prejudicial, and requires reversal unless VA can show that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), reversed and remanded on other grounds sub nom, Shinseki v. Sanders, 129 S. Ct. 1696 (2009). To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any notice error did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. In this regard, the Veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim, as he has been afforded the opportunity to submit additional argument and evidence, which he has done. He addressed the issue at a hearing in December 2012. The RO reconsidered the appellant's claim in a supplemental statement of the case, dated in November 2012. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). In addition, a review of the appellant's submissions and his representative's submissions indicates an accurate understanding of the issue on appeal. These actions indicate actual knowledge on the part of the claimant, and that a reasonable person could be expected to understand from the notice what was needed. See Shinseki, supra. The Board therefore finds that no prejudice to the Veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. To the extent that the Veteran's representative has asserted that there may be missing service treatment reports, there is nothing to indicate this; in August 2001, the National Personnel Records Center informed the Veteran that his original medical file was not in their records and had been loaned to VA. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded an examination, and an etiological opinion has been obtained based on a full review of the file, a thorough clinical evaluation, and consideration of the Veteran's assertions. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs