Citation Nr: 1306050 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 04-42 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied, in pertinent part, the Veteran's claim of service connection for bilateral hearing loss. In August 2008 and in August 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The record indicates that, pursuant to the Board's prior remands, the Appeals Management Center (AMC) scheduled the Veteran for a medical examination and later issued a Supplemental Statement of the Case (SSOC). See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran was scheduled for a hearing before a Veterans Law Judge in May 2008. In April 2008, the Veteran contacted VA and requested that his scheduled hearing be cancelled. See 38 C.F.R. § 20.704 (2012). FINDING OF FACT The Veteran's bilateral hearing loss did not manifest during, or as a result of, active service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify VA has a duty to notify and assist Veterans 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). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between a 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. The United States Supreme Court (Supreme Court) held, however, that this framework was inconsistent with the statutory requirement that the United States Court of Appeals for Veterans Claims take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision in Sanders, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in November 2003 and December 2006 addressed all notice elements listed under 3.159(b)(1) and the November 2003 letter was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. While all requisite notice was not provided to the Veteran until after the initial adjudication of his claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in 2005 and 2011, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. The Veteran's claims file also was reviewed by a VA physician in January 2012 who provided a medical opinion. Copies of private treatment records and Social Security Administration (SSA) records also have been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Given the foregoing, the Board finds that further notice or assistance to the Veteran is not 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). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See, for example, Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Facts and Analysis The Veteran contends that he is entitled to service connection for bilateral hearing loss. As outlined below, however, the preponderance of the evidence of record demonstrates that the Veteran's bilateral hearing did not manifest during, or as a result of, active military service. As such, service connection is not warranted. The Veteran's service treatment records do not reflect that he suffered from hearing loss or associated symptomatology during his active military service. According to the Veteran's September 1965 enlistment examination, pure tone thresholds, in decibels (dB), were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 N/A 30 LEFT 5 5 15 N/A 20 The above audiometric testing reveals that the Veteran was not suffering from hearing loss, for VA rating purposes, at the time of his enlistment. For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2012). The Veteran's March 1970 separation examination also reflects that he was not suffering from hearing loss, for VA rating purposes, at the time of separation from active duty. While the Veteran did report a history of ear, nose and throat trouble, running ears and hearing loss since age 16 in his report of medical history associated with this examination, objective audiometric testing confirmed that the Veteran was not suffering from hearing loss at this time. Authorized audiological evaluation revealed pure tone thresholds, in dB, to be: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 N/A 20 LEFT 10 10 15 N/A 20 Therefore, the evidence of record reflects that the Veteran was not suffering from hearing loss of either ear, for VA rating purposes, at the time of separation from active duty. Id. Likewise, post-service medical records confirm that the Veteran was not diagnosed as having bilateral hearing loss, for VA rating purposes, within one year of his separation from service. Id. The first post-service evidence of hearing loss if from 2000, approximately 30 years after the Veteran's separation from service. According to an August 2000 private medical report, the Veteran was seen as a self-referral for evaluation of his hearing and the possible association of hearing loss being work-related. The Veteran reported decreased hearing in both ears for at least 15 years. It was noted that this was a slow progression. The Veteran reported that he had moderate noise exposure during military service, but it was not extensive. Then, from 1970 through the date of this evaluation, the Veteran worked in a field where he was around substations and transformers which he felt were "intensely noisy." It was also noted that while the Veteran occasionally used hearing protection, this was not on a regular basis. He also described "some shooting" as his nonwork-related noise exposure. The audiologist concluded that the Veteran suffered from bilateral mixed hearing loss that was due to work-related noise exposure. A December 2000 private record from the Everett Clinic also indicates that if it were not for the Veteran's work-related noise-induced hearing loss, his hearing would be substantially better and he would not have the communication difficulty he now suffers. The Veteran was seen by a different private facility in May 2001. The Veteran again reported hearing loss for the past 15 years. It was noted that he worked in electrical substations for the past 30 years with noise exposure. He also reported being exposed to jack hammering, drilling and rotary hammering noises while at work. He did report using ear protection at this time. The Veteran was afforded another VA audiometric examination for his tinnitus in January 2005. The Veteran reported 4 years of aircraft noise exposure during military service and 30 years of power plant noise exposure as an electrician following separation from active duty. The Veteran reported suffering from hearing loss of a gradual onset. The examiner confirmed that the Veteran suffered from mild to moderate severe mixed hearing loss of the right ear and mild combined sensory/neural hearing loss of the left ear. An opinion as to the cause of the Veteran's hearing loss was not provided as part of this examination. The Veteran was afforded an additional VA examination in May 2011. The examiner confirmed that the Veteran was suffering from bilateral hearing loss. The examiner opined that the Veteran's hearing loss was less than likely related to military service noise exposure. The examiner explained that the Veteran reported that his hearing loss progressed over the years. Military noise induced hearing loss was noted to stop when removed from the hazardous noise exposure. A medical opinion was obtained in January 2012. The physician reviewed the Veteran's claims file and noted that in-service noise exposure was conceded. However, the physician opined that it was less likely as not that the Veteran's current hearing loss was related to military service. The examiner explained that the Veteran's hearing was within normal limits at the time of enlistment and separation from active duty, and in fact, there was evidence of a slight improvement during military service. The physician also noted that in 2000 and 2001 the Veteran reported that his hearing had been getting worse for the past 15 years, which would put his reported date of onset at 1985 or 1986. This was more than 15 years following the Veteran's separation from active duty. At this time, the Veteran also reported extensive industrial noise exposure in his civilian job following military service. Therefore, the physician concluded that there was no compelling evidence to connect the current hearing loss to the Veteran's military service, and as such, it was less likely as not due to military service. The Board finds that the preponderance of the above evidence is against the Veteran's claim of service connection for bilateral hearing loss. While the Veteran did report a history of hearing loss since age 16 at the time of his separation from active duty, objective testing revealed that the Veteran was not suffering from hearing loss of either ear, for VA rating purposes, at this time. In fact, the first medical evidence diagnosing hearing loss is from August 2000 - approximately 30 years after the Veteran's separation from active duty. At this time, the Veteran confirmed that he had only been suffering from hearing loss for the past 15 years. This would be approximately 15 years after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. 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); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). The Veteran's own admission that he had been suffering from hearing loss only since approximately 1985, approximately 15 years after his service separation, indicates that his hearing loss had not existed since service. In addition, private physicians from 2000 and 2001 specifically related the Veteran's bilateral hearing loss to his post-service occupational noise exposure. The Veteran reported military noise exposure that was not extensive but described a great deal of noise exposure in his post-service occupation in which he only wore hearing loss on occasion. Based on these statements, as well as the evidence of normal hearing upon separation and the Veteran's reports of his hearing loss progressively developing over time, the VA examiner of record and the January 2012 VA physician opined that it was less likely than not that the Veteran's hearing loss manifested during, or as a result of, active military service. The Board recognizes that the Veteran believes he is entitled to service connection for bilateral hearing loss. In a July 2009 statement, the Veteran asserted that his hearing loss was caused by his 4 years in the military. The Veteran has not identified or submitted competent evidence relating his current bilateral hearing loss to active service. When considering whether lay evidence may be 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, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Veteran reported in a December 2003 statement that he was exposed to noise 8 to 12 hours per day and the record contained evidence demonstrating that his previous employer related his hearing loss to military service. While the Board is not questioning the Veteran's report of in-service noise exposure, a review of the evidence of record does not show that the Veteran's hearing loss was ever in fact related to service by his previous employer or by any VA or private medical provider. In fact, as already noted, records prepared in conjunction with the Veteran's worker's compensation claim related his bilateral hearing loss to his post-service occupational noise exposure. While the Veteran may believe his current hearing loss is related to military service, the record evidence does not suggest that he has the requisite training or expertise to offer an opinion relating hearing loss that manifested 15 years after military service to military noise exposure. Id. The Board notes in this regard that some of the Veteran's statements could be read to suggest that his hearing loss first began during active service. The existence of diminished hearing during service certainly would be something that the Veteran is competent to report. Any such assertion is not credible, however. Prior to filing his claim for VA disability compensation, the Veteran reported that his hearing loss first manifested approximately 15 years after service and he actually had not been exposed to extensive amounts of noise during military service. It was not until after he filed a claim for VA disability compensation that he began to assert that he was exposed to a great deal of noise during service and his hearing loss first began during service. The Court has held that pecuniary interest in benefits may affect the credibility of a claimant's testimony. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran's wife also stated in January 2007 that the Veteran's hearing was worse now and he wore hearing aids. This statement does not support the claim of entitlement to service connection for bilateral hearing loss. The Board is not disputing the fact that the Veteran now suffers from a hearing loss disability. What is in dispute is whether the Veteran's current hearing loss manifested as a result of service. The Veteran's wife did not provide any lay evidence in support of this conclusion. In summary, the evidence demonstrates that the Veteran's hearing was normal upon separation from active duty. The Veteran also reported to 2 different physicians in 2000 and 2001 that his bilateral hearing loss did not manifest until 1985, or approximately 15 years after his service separation, and that it had worsened progressively since that time. Based on this evidence, the physicians of record have opined that it is less likely than not that the Veteran's current bilateral hearing loss manifested during, or as a result of, active service. The record contains no competent and credible evidence linking the Veteran's current hearing loss to military service. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs