Citation Nr: 1305901	
Decision Date: 02/20/13    Archive Date: 02/27/13

DOCKET NO.  09-08 092	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel

INTRODUCTION

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).

The Veteran had active service from May 1954 to July 1954, and from September 1954 to November 1958.   

This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision by the Regional Office (RO), which denied the Veteran's service connection claims for bilateral hearing loss and tinnitus.

In May 2012, the Board denied the Veteran's tinnitus and right ear hearing loss claims, but remanded the left ear hearing loss claim for further development.  That development has since been completed and the left ear hearing loss claim has returned to the Board for further appellate consideration.


FINDING OF FACT

Although an interpreted February 2009 private audiogram reflects hearing loss for VA purposes in the Veteran's left ear, and there is credible evidence of noise exposure during his military service, the first recorded complaint of hearing loss occurred more than 45 years after his service discharge and the most probative evidence reflects that this hearing loss is less likely due to his military service.


CONCLUSION OF LAW

Left ear hearing loss was not incurred in or aggravated by active military service, nor may service connection be presumed.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which 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. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the 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.

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323   (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  In this regard, the RO sent to the Veteran VCAA notice in an April 2007, letter prior to the initial adjudication in July 2007.  Moreover, following the Board remand, an additional VCAA notice was sent to the Veteran in August 2012, and that letter pertained specifically to left ear hearing loss.  Collectively those letters informed the Veteran of his and VA's respective duties for obtaining evidence.  In addition, the Veteran has been advised as to how disability ratings and effective dates are assigned, in compliance with Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 490-491 (2006).   

VA has a duty to assist Veterans in obtaining evidence necessary to substantiate their claims.  The claims file contains VA and private audiology records, as well as a VA examination report dated in June 2009.  The VA audiology examination report and addendum reflect a detailed review of the claims file, taking of a detailed history from the Veteran, audiology testing, and a conclusion.  In addition, pursuant to the Board's remand, a December 2012 addendum was obtained.  In obtaining this additional medical comment, the Board is now satisfied there was compliance with the Board's remand directives.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  In fact, in response to the December 2012 SSOC, the Veteran through his representative indicated later in the same month that he had no additional evidence to submit and asked that his case be forwarded to the Board immediately.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection Claim

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. 
§§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  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 active service.  38 C.F.R. § 3.303(d) (2012).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes.  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, as distinguished from merely isolated findings or diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012). 

To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Id. at 498 (holding that, on the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law , lay observation is competent).  Once evidence is determined to be competent, its credibility must be evaluated.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). 

Certain chronic disabilities, to include certain types of hearing loss to the extent they may constitute an organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

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, or 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 Court of Appeals for Veterans Claims has endorsed VA's interpretation of the law which indicates that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993), citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988).  When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. at 160.

In its determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board must assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

The Veteran's service treatment records (STRs) include a May 1954 enlistment examination report, as well as a July 1954 separation examination report.  Both reports document whispered voice test scores of 15 out of 15.  While the Veteran reported a history of ear, nose or throat problems in his July 1954 separation examination, a physician clarified that the Veteran was treated for hearing loss in 1949, and had not experienced any subsequent hearing problems. 

The Veteran's STRs also include an August 1954 enlistment examination report, as well as an October 1958 separation examination report.  These reports also reveal whispered voice test scores of 15 out of 15.  An audiogram conducted during his separation examination did not reveal impaired hearing, as defined by Hensley when converted to ISO-ANSI standards.  The Veteran's August 1954 enlistment examination stated that he previously had pus in his Eustachian tubes but that his "hearing [was] O.K . now."  His separation examination clarified that he had a right ear infection as a child which had resolved with no complications or sequelae. 

In March 2009, the Veteran submitted a February 2009 private audiologic evaluation report and statement from J.P.B., M.D. The accompanying medical statement documents the Veteran's report of significant in-service noise exposure from the flight line. Dr. J.B.P. opined that the Veteran has hearing loss which is "secondary to noise exposure."  

The Veteran was afforded a VA compensation examination in June 2009.  He then complained, in pertinent part, of difficulty hearing conversations and the TV.  He reported in-service noise exposure "from the flight line and bombers."  His post-service noise exposure included eight years of construction "but [this] was laying pipe so it was relatively quiet-occasional noise."  Most of his career was in sales. His hobbies did not involve significant noise exposure.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
40
40
40
LEFT
25
25
10
20
35

Speech recognition score was 94 percent, bilaterally.   

After conducting the audiology examination and reviewing the Veteran's claims folder, the June 2009 VA examiner stated:  [g]iven that the hearing thresholds were well within normal limits to 6000 Hz in each ear at discharge and given his history of some occupational noise exposure as well as his medical conditions and [the] usual progression with aging, it is less likely than not that the hearing loss is due to MILITARY noise exposure.  Literature does not support a delayed onset of hearing loss from noise; the damage is immediate. . . " 

As mentioned, the left ear hearing loss claim was remanded in May 2012 for further development because the Board found several discrepancies in the February 2009 private audiogram.  That audiogram was inadequate in that it did not clearly identify left ear hearing loss as defined by 38 C.F.R. § 3.385.  It was also unclear whether speech discrimination testing was conducted using the Maryland CNC test and whether pure tone thresholds readings were conducted at the 3000 Hertz frequency.  

Despite the RO's efforts to contact the private physician for additional comment, there apparently was no response.   Consequently, the Veteran's claim was transferred to the VA audiologist who conducted the June 2009 for additional review and interpretation of this private audiogram.

The December 2012 examiner, who notably is an Audiology Supervisor, again reviewed the record and interpreted the private audiogram results, as requested.  She explained that the threshold reading at 3000 Hertz was not tested in either ear during the February 2009 audiogram, but stated that typically, in audiology practice, interoctave frequencies are not tested unless there is a significant difference of greater than 20 decibels hearing loss between the primary frequencies of 500, 1000, 2000, 4000, and 8000 Hertz.  The examiner noted further that the Veteran's private speech audiometry, a.k.a. word recognition, scores were excellent in both ears, and were obtained using monitored live voice rather than a recording.  

As to which word list was used by the private physician, the VA examiner stated that such is unknown, but noted that the Maryland CNC lists are not commonly used in the private sector, and instead are only required for VA C&P purposes.  The examiner also indicated that the use of insert headphones could account for the low frequency hearing loss in the Veteran's ears, as compared to his June 2009 VA testing.  At any rate, the examiner reiterated her opinion that the Veteran's left ear hearing loss is less likely related to his military service, even considering exposure to military noise.  

Having reviewed the complete record, the Board finds that service connection for left ear hearing loss is not warranted.  As to the question of in-service acoustic trauma, the Veteran's military occupational specialty (MOS) as an Air Force policeman is consistent with the places, types, and circumstances that one in his position could have been exposed to loud noises as described.  38 U.S.C.A. 
§ 1154(a). 
  

Additionally, as to the issue of whether the Veteran has a current disability, the  June 2009 VA audiometric findings do not demonstrate hearing loss in the Veteran's left ear, in accordance with VA regulation.  38 C.F.R. § 3.385.  However, the private February 2009 audiogram results, as interpreted by the VA examiner, do show left ear hearing loss, as the Veteran's auditory threshold was 26 decibels or greater for at least three of the frequencies - namely, at 500, 1000, and 4000 Hertz.  Thus, although hearing loss in the left ear was not shown on the most recent VA audiology examination, left ear hearing loss has been shown since the filing of this claim.

However, the Veteran's STRs, as described above, are negative for any hearing loss complaints, treatment, and/or diagnoses.  Although the VA examiner, after a review of the STRs, was unable to rule out a slight threshold shift in the Veteran's left ear hearing during service, she indicated that the Veteran's left ear hearing was still well within normal limits during service.  See December 2012 VA addendum.  

While the absence of sufficient hearing loss during service to satisfy these requirements of § 3.385 is not a bar to service connection under Hensley, the first documented complaint of any hearing problems is not shown in the record until April 2006 (see applicable VA treatment note showing complaint of difficulty hearing), more than four decades after the Veteran's discharge from active service.  Though the Veteran does not assert that he has experienced continuing hearing symptoms since service, the Board may consider the absence of a relevant medical complaint, like here, until so relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 

Concerning the etiology of the Veteran's left ear hearing loss, the record contains conflicting opinions.  As noted, Dr. J.P.B., in his February 2009 statement, stated that the Veteran has hearing loss is "secondary to noise exposure."  Yet, the VA examiner of the June 2009 VA examination and author of the December 2012 addendum provided an etiology opinion unfavorable to the claim.

The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  However, the Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993), and Colvin v. Derwinski, 1 Vet. App. 171 (1991). 

The Board places less probative weight on the opinion provided by Dr. J.P.B.  There is no indication that this physician was aware of the Veteran's history, nor did he provide any underlying rationale to support his conclusion.  These deficiencies limit the probative value of Dr. J.A.'s opinion.  See Nieves-Rodriguez v. Peake, 22 Vet App 295, 304 (2008) (the commenting medical expert must be informed of sufficient facts upon which to base an opinion relevant to the problem at hand, and most of the probative value of the opinion is derived from discussion of the underlying medical rationale, not instead from mere review of the claims file).

Instead, the Board finds that the opinion provided by the VA examiner in June 2009, and additional comment in December 2012, is the most probative.  In finding that the Veteran's left ear hearing loss is less likely related to service, the examiner explained that exposure to military noise does not always result in a noise injury, and noted that, in this case, the evidence record does not support an actual noise injury in service.  This VA examiner did not dispute that the Veteran had experienced noise exposure during his service, as he alleges, only that he did not have an actual noise injury during service and left hearing loss as a consequence.  The examiner also cited to the Veteran's history of post-service occupational exposure, as well as the normal aging process, which both weigh against the claim that the current hearing loss is related to his military service.  

Additionally, the examiner referred to medical literature which indicates that the effect from noise exposure is rather immediate; not delayed, as shown here.  Lastly, the examiner recognized the chronology of the Veteran's left ear hearing loss, noting that his hearing was within normal limits during service, and pertinent complaints are not shown in the record until more than four decades after service discharge.  Collectively, the June 2009 VA opinion, coupled with the December 2012 addendum, are factually accurate, fully articulated, and contain sound reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The VA examiner reviewed the entire claims file and included a synopsis of the Veteran's medical history, and an examination of the Veteran was performed.  

While the Veteran, as a layperson, is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion as to the etiology of his hearing loss.  He, as a layperson, is not competent to opine on medical matters such as diagnoses or etiology of medical disorders, and his opinion as to his left ear hearing loss and its relationship to his service is therefore entitled to no weight of probative value.  See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). 

Most critically, the Veteran's essential contention of a nexus between the in-service noise exposure and hearing loss in the left ear has been fully investigated as mandated by the Court's decision in Jandreau.  For the reasons and bases discussed above, the most probative evidence indicates that this disorder is less likely than not related to the military, even conceding exposure to military noise.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine in not applicable where, as here, the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b) see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  The claim therefore must be denied.  



ORDER

Service connection for left ear hearing loss is denied.

 

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


Department of Veterans Affairs