Citation Nr: 1305671 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 11-00 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to December 1957 and from March 1960 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied the claim. In January 2011, the Veteran requested a hearing before the Board at his local RO. In May 2012, he was notified of a hearing scheduled in June 2012. In June 2012, the Veteran's representative submitted a written statement indicating that the Veteran wished to cancel his hearing. Accordingly, the Veteran's hearing request has been withdrawn. The claim was remanded by the Board in August 2012 for additional development. As discussed in greater detail below, the actions directed by the Board have been accomplished and the claim has been returned for appellate review. 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 Bilateral hearing loss did not manifest in service, or within one year thereafter, has not been shown to be causally or etiologically related to military service, and may not be presumed to be causally or etiologically related to military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service and may not be presumed to have had its onset in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in an October 2008 letter. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service and VA treatment records have been associated with the claims folder and he was afforded an appropriate VA examination in connection with his claim. Moreover, the Board is satisfied that there has been substantial compliance with the remand directives issued in its August 2012 decision as VA treatment records dated since October 2008 were obtained and the Veteran was scheduled for another VA examination in conjunction with his claim. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran failed to report to the VA examination scheduled in September 2012. VA regulations provide that when a claimant fails, without good cause, to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. 38 C.F.R. § 3.655(a). The Veteran has not provided any explanation for failing to report to the September 2012 VA examination. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Pertinent Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. If sensorineural hearing loss becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disease first 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). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). The Board notes that audiometric test findings by a service department, dated prior to November 1, 1967, are presumed to be reported using a unit standard set by the American Standards Association (ASA). Since November 1, 1967, the unit standard for audiometric testing for hearing has been set by the International Standards Organization (ISO) - American National Standards Institute (ANSI). The ISO unit standard is the current method for measuring hearing loss and is used by VA to determine a hearing loss disability under 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran asserts that his current bilateral hearing loss is the result of exposure to acoustic trauma during active duty. He reports that he served with the 75th Artillery and carried 200 pound projectiles, which made a terrible noise when fired. The Veteran contends that he was never provided with hearing protection in service. He reports that each time his unit had artillery practice, his hearing loss worsened, and he states that none of his civilian occupations was in as noisy of an environment as the military. The Veteran's service personnel records indicate that he served as a field artillery repairman during the period of December 1954 to December 1957 and as an auto mechanic during the period of March 1960 to February 1963. See DD-214s. The Veteran's service treatment records are devoid of reference to complaints of, or treatment for, a decrease in hearing acuity or bilateral hearing loss. Whispered voice tests dated in December 1954, November 1957, and February 1960 revealed scores of 15 out of 15. On the January 1963 separation examination, the results of pure tone thresholds, in decibels and when converted to ISO units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 - 5 LEFT 10 5 15 - 10 As a result, the Board finds that hearing loss was not shown or reported during active duty. See Hensley v. Brown, 5 Vet. App. at 157. On VA examination in January 2009, the Veteran reported having to turn the volume up on his television and being unable to hear his daughter. The Veteran stated he had been aware of his hearing loss for years. He reported that during his first tour of active duty he served as an artillery mechanic and as a truck driver, and on his second tour he trained on eight inch howitzers and worked as a mechanic on trax and wheel vehicles. The Veteran denied experiencing hearing loss during active duty. As a civilian, the Veteran planted trees, did delivery and warehouse work, was a line mechanic, drove a logging truck, and was a long haul truck driver. The Veteran reported that post-service he hunted and did target shooting without ear protection. Audiological testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 30 60 65 LEFT 20 20 40 70 80 The Veteran was diagnosed with mild to severe sensorineural hearing loss from 2000 Hertz through 8000 Hertz in the right ear and mild to profound sensorineural hearing loss from 1500 Hertz through 8000 Hertz in the left ear. The VA examiner reviewed the Veteran's claims file, to include his service treatment records, and opined that the Veteran's hearing loss was not caused by in-service noise exposure. The VA examiner noted that the January 1963 separation examination showed normal hearing in both ears except for a mild hearing loss at 8000 Hertz in the left ear. The VA examiner also noted that the Veteran's service treatment records did not demonstrate any complaints of hearing loss, despite the report of several other health issues, and cited the Veteran's denial of hearing loss in service as a basis for the opinion. The VA examiner observed that the Veteran's main occupation following service was truck driver and that the greater hearing loss found in the Veteran's left ear was consistent with a truck driver receiving more traffic and engine noise in that ear. The VA examiner also found it significant that the Veteran reported hunting and target shooting without ear protection. The VA examiner opined that greater hearing loss in the left ear would be consistent with a right-handed person, such as the Veteran, firing guns. In a September 2009 letter, the Veteran clarified that he had experienced hearing loss in service. Specifically, he reported that the first time one of the cannons was fired while he was standing directly behind it, he could not hear for several hours afterward. In a May 2012 written statement, the Veteran's representative asserted that the January 2009 VA examiner's opinion was invalid as it was based on the in-service whisper tests and separation audiological examination. The representative also asserted that it was speculation to base the Veteran's hearing loss on his occupation and argued that the Veteran's hunting was not a valid basis for an opinion. The Board remanded the claim in August 2012 to obtain an additional medical opinion. It determined that the January 2009 opinion was not adequate for adjudicative purposes since the opinion was based, in part, on the Veteran's normal hearing at the time of his separation from service. As noted above, the Veteran failed, without good cause, to report to a VA examination scheduled in September 2012. Given the foregoing, the Board must decide the claim on the evidence of record. The Board previously conceded the Veteran's in-service exposure to acoustic trauma and the Veteran exhibited hearing loss per VA standards at the time of the January 2009 VA examination. Therefore, the Veteran has two of the elements necessary to establish a claim for service connection, namely evidence of an in-service event and evidence of a current disability. With evidence of an in-service event and a current disability, the remaining element required to establish service connection is a nexus between the current disability and the in-service event. The evidence of record, however, does not establish that any such nexus exists. As an initial matter, service connection for bilateral hearing loss is not warranted on a presumptive basis because there is no evidence that the Veteran has hearing loss per VA standards within one year of his discharge from service. See 38 C.F.R. §§ 3.307, 3.309, 3.385. Rather, the first evidence that he exhibited hearing loss per VA standards was approximately 46 years after separation from service. See January 2009 VA examination report. Service connection is also not warranted on a direct basis. The Board acknowledges the Veteran's assertion that he experienced hearing loss, or a decrease in hearing acuity, during service and has had problems with his hearing since then. It finds that he is competent to make such assertions. See Layno, 6 Vet. App. 465 (1994). However, the Board does not find the Veteran's statements to be credible with respect to experiencing hearing loss symptoms during and continuing since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). As noted above, the Veteran's service treatment records are devoid of reference to, complaints of, or treatment for hearing loss, despite reports of multiple other medical conditions. Moreover, the Veteran denied running ears and ear, nose or throat trouble, and no complaints were noted in reference to a decrease in hearing acuity, at the time of his separation from service following his first period of active duty in November 1957 and at the time of his enlistment examination for a second period of active duty service in February 1960. See reports of medical history. Furthermore, no complaints were noted in reference to a decrease in hearing acuity at the time of his separation examination following his second period of active duty service and clinical evaluation of his ears and drums was normal at that time. See January 1963 report of medical examination. These histories, made more contemporaneous to service, have greater probative value than the history more recently reported by the Veteran. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In addition to the foregoing, the Veteran denied experiencing symptoms of hearing loss in service at the time of the January 2009 VA examination. The Board acknowledges that it found the opinion provided by the January 2009 VA examiner to be inadequate for adjudicative purposes since the VA examiner based the opinion, at least in part, on the fact that the Veteran exhibited normal hearing at the time of his January 1963 separation from service. This part of the opinion is, therefore, afforded no probative value. The remaining portion of the opinion, however, is afforded probative value. This is so because the January 2009 VA examiner took into consideration the Veteran's reports of in-service and post-service noise exposure prior to determining that the Veteran's hearing loss was consistent with his post-service exposure to noise while working as a truck driver and to his post-service hunting and target shooting activities. In addition to factoring both in-service and post-service noise exposure, the VA examiner explained that the Veteran exhibited a greater loss of hearing in his left ear, which was consistent with a right handed person firing guns and driving a truck. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Veteran's assertions regarding continuity of symptomatology are not credible, he has not presented any additional competent evidence establishing a nexus between his current bilateral hearing loss and in-service noise exposure, and he failed, without good cause, to appear for a scheduled audiological examination in September 2012. Given the foregoing, and in the absence of any competent and probative evidence that the Veteran's bilateral hearing loss is related to active duty, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ D. VAN WAMBEKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs