Citation Nr: 1307980 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-49 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1968 to October 1969, and had prior active duty for training (ACDUTRA) with the National Guard (from November 1964 to May 1965). This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral SNHL disability is related to an event, injury, or disease in service. CONCLUSION OF LAW Service connection for bilateral SNHL disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A July 2008 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. It also informed him of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. The RO arranged for a VA examination in April 2009 and the examination report (with nexus opinion) is adequate for rating purposes as it addresses all questions posed and includes a detailed explanation of rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. The Board finds that the record as it stands includes adequate competent evidence for the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. B. Factual Background The Veteran's service personnel records, including his DD 214, show that he served (including in Vietnam) as an artillery crewman. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis relating to hearing loss. Audiometry on April 1965 examination for separation from ACDUTRA revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) X 0 (5) LEFT 0 (15) 0 (10) 0 (10) X 0 (5) [The figures in parentheses represent conversions of audiometry reported in ASA values to ISO (ANSI) units, and are provided for data comparison purposes.] In his report of medical history on October 1969 service separation examination the Veteran denied any ear problems or hearing loss. Audiometry revealed that puretone thresholds (in ISO values) were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 X 10 LEFT 5 5 5 X 10 The Veteran's VA treatment records show that in February 2005 he was seen for a complaint of decreased hearing (with associated ear pain). The diagnosis was bilateral otitis media; antibiotics were prescribed. The Veteran reported three prior ear infections in the previous ten years. Over the course of a few weeks the ear pain ceased, and the Veteran reported that his hearing was 75 percent better. There are no other complaints pertaining to hearing loss noted in the VA records until he filed his claim of service connection for hearing loss in May 2008. In a July 2008 statement, the Veteran indicated that he had used the VA healthcare system for over 20 years, and he had not seen any civilian doctors. He did not identify any treatment for hearing loss . On April 2009 VA examination the examiner indicated that the claims file was reviewed, and noted that the Veteran had served in an artillery unit and denied postservice noise exposure. Audiometry revealed that puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 40 90 95 LEFT 25 25 35 60 90 Speech audiometry revealed 96 percent discrimination in each ear. The diagnosis was mild to profound bilateral SNHL. The examiner opined that the Veteran's bilateral SNHL was not likely a result of his military noise exposure because his STRs show that hearing at separation from service was within normal limits. In his June 2009 notice of disagreement and December 2009 substantive appeal the Veteran asserts that he was not afforded audiometry on service separation; he relates that he was evaluated [for separation] with a group of 600 other men who were collectively asked "can you hear us" and that they responded in the affirmative. C. Legal Criteria and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic records database), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. To establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including organic diseases of the nervous system such as SNHL) may be service connected on a presumptive basis if they manifested to a compensable degree within a specified period of time postservice (one year for SNHL). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. It is not in dispute that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385, as such was shown on April 2009 official audiometry. Based on his duties in service as an artillery crewman (including in Vietnam), it may also reasonably be conceded that the Veteran was exposed to hazardous levels of noise in service. What remains necessary to establish service connection for his bilateral SNHL is that there must be competent evidence of a nexus between the current hearing loss and his service/noise trauma therein. A hearing loss disability was not manifested in service. The Veteran's STRs are silent for such disability, and audiometry on active service separation examination was normal. [While the Veteran disputes that he was afforded audiometry on separation examination, his anecdotal accounts indicating so are not credible in the face of an official contemporaneous record noting puretone thresholds at separation.] Furthermore, SNHL is not shown to have been manifested in the first postservice year. Consequently, service connection for the bilateral hearing loss disability on the basis that such disability became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. What remains for consideration is whether in the absence of manifestation in service, and continuity since, the Veteran's bilateral hearing loss disability may nonetheless be related to his service/noise trauma therein. He is not competent to establish by his own opinion that a current hearing loss disability is related to remote noise trauma in service. That is a medical question which requires medical expertise. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has no medical expertise, and does not cite to any supporting medical opinion or treatise (nor provide any rationale for his opinion). The only competent (medical) evidence that directly addresses the matter of a nexus between the Veteran's hearing loss and his service/noise trauma in service is the report of the April 2009 VA examination, when the examiner, pointing to normal audiometry at separation, opined, in essence, that the Veteran's hearing loss was unrelated to his military service. The examiner expressed familiarity with the record, and explained the rationale for the opinion, citing to normal audiometry at separation (which by inference would not be expected if the Veteran had incurred a noise-trauma-related hearing loss during service). The examiner (an assistant chief of audiology) has the requisite training/expertise, and the opinion is probative evidence in the matter. Because there is no competent evidence to the contrary, the opinion is persuasive. Notably, the lengthy postservice interval (more than 35 years) before a hearing loss disability was clinically noted is, of itself a factor weighing against a finding of service connection in this case. Accordingly, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's bilateral hearing loss disability and his service/noise trauma therein, and therefore against his claim,. In these circumstances the "benefit of the doubt" rule does not apply; the appeal in the matter must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs