Citation Nr: 1308317 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-09 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which continued a 10 percent evaluation for type II diabetes mellitus; and denied service connection for peripheral neuropathy, hearing loss, and tinnitus; and a December 2008 rating decision from the VA RO in St. Louis, Missouri, which declined to reopen the Veteran's previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). In December 2004 and May 2009, the Veteran submitted notices of disagreement with the denials of service connection for peripheral neuropathy, hearing loss, and tinnitus and the denial of reopening of his PTSD claim. He subsequently perfected appeals for the denials of service connection for hearing loss and tinnitus and the denial of the petition to reopen the PTSD claim in March 2007 and December 2009. His case is currently under the jurisdiction of the VA RO in Atlanta, Georgia. February 2012 and April 2012 rating decisions from the Appeals Management Center (AMC) granted entitlement to service connection for tinnitus, assigning a 10 percent evaluation effective May 25, 2004, and PTSD, assigning a 30 percent evaluation effective February 28, 2006. These grants of service connection are considered a full grant of the benefits on appeal for these claims. As such, the claim of entitlement to service connection for tinnitus and petition to reopen the previously denied claim of entitlement to service connection for PTSD are no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In July 2009, the Veteran failed to appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In September 2009 and November 2010, the Board remanded the Veteran's claim of entitlement to service connection for bilateral hearing loss to the AMC for further evidentiary development, including obtaining a VA examination and addendum opinion on the etiology of the Veteran's bilateral hearing loss. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the Veteran was afforded a VA audiological examination in February 2010 with an addendum opinion in February 2011. Additionally, the Board further obtained a medical opinion from the Veterans Health Administration (VHA) in August 2012. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT Bilateral hearing loss was noted at enlistment and did not undergo a worsening or aggravation therein, and the Veteran's current bilateral hearing loss is not otherwise shown to be related to service. CONCLUSION OF LAW The Veteran's bilateral hearing loss was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, the Board finds that 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 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. Prior to the initial adjudication of the Veteran's claim, a letter dated in August 2004 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, an October 2006 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, VA examination reports, and VHA opinion are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. An April 2009 statement from the Veteran claims that his personnel records are incomplete and that the complete personnel records would show in-service flight orders. However, there is no evidence to support the Veteran's contention that his personnel records are incomplete. Further, as he has not claimed that the allegedly missing personnel records include any in-service audiograms or other evidence of an in-service worsening of his pre-existing hearing loss, any such records would not help to substantiate his claim. Therefore, the Board finds that VA has fulfilled its duty to obtain treatment records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record indicates that the Veteran underwent a VA examination for his hearing loss disability in February 2010 with a February 2011 addendum opinion. The results from that examination have been included in the claims file for review. The examination involved a review of the claims file and a thorough examination of the Veteran, including the appropriate audiometric testing. As the February 2010 and February 2011 VA medical opinions were not deemed adequate, the Veteran was also afforded a VHA medical opinion in August 2012. The VHA audiologist reviewed the Veteran's claims file and provided an opinion supported by sufficient rationale. Therefore, the Board finds that the February 2010 examination with February 2011 addendum opinion and August 2012 VHA opinion, taken together, are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim of entitlement to service connection for bilateral hearing loss. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran contends that his hearing loss began during his military service. Specifically, he asserts that he was exposed to acoustic trauma in Vietnam from mortar and aircraft noise and that this is the cause of his current hearing loss. Therefore, he believes service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For the purpose of applying the laws administered by the 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 (Hz) is 40 decibels (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. See 38 C.F.R. § 3.385 (2012). A veteran will be considered 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases, like this one, in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). 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. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Veteran's July 1966 entrance examination included the results from two audiograms, dated May 18 and 19, 1967, showing that the Veteran had hearing loss as defined by VA regulations. See 38 C.F.R. § 3.385 (2012). The Board notes that prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standard have been set by the International Standards Organization (ISA)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards from the Veteran's entrance examination report have been converted to ISO-ANSI standards. The ASA standard values are listed first in the below charts, followed by the ISO-ANSI standard values in parentheses. The May 18, 1967 audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 (15) 0 (10) 0 (10) 50 (60) 50 (55) 20 (30) LEFT 5 (20) 0 (10) 5 (15) 25 (35) 45 (50) 35 (45) The May 19, 1967 audiogram results were as follows: HERTZ 250 500 1000 2000 4000 RIGHT 15 (30) 10 (25) 5 (15) 10 (20) 30 (35) LEFT 5 (20) 5 (20) 5 (15) 5 (15) 30 (35) Additionally, the examiner diagnosed the Veteran with bilateral high frequency hearing loss and found it was not disqualifying. As bilateral hearing loss for VA purposes was noted on entrance to active duty, the presumption of soundness does not apply. Therefore, the issue before the Board is whether there was an increase in disability during such service; if so, the pre-existing disability will be considered to have been aggravated by military unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). A review of the service treatment records shows that the Veteran was afforded two additional audiograms during his military service. The first, dated in June 1968, was performed in conjunction with an examination for Officer Candidate School. The second, dated in February 1969, was performed in conjunction with an examination for flight school. The June 1968 audiogram results were as follows: HERTZ 500 1000 2000 4000 RIGHT 0 0 0 50 LEFT 0 0 5 45 The February 1969 audiogram results were as follows: HERTZ 500 1000 2000 4000 RIGHT 0 0 0 0 LEFT 0 0 0 0 Neither examination noted a diagnosis of hearing loss or complaints of any further difficulty hearing. The Veteran also checked "no" as his response to whether he had ever or currently had hearing loss on the reports of medical history associated with both of these examinations. Although the June 1968 report of medical history included a notation by the examiner of "some high frequency hearing loss," there is no indication that this is worse than the hearing loss that the Veteran experienced on entrance. Additionally, the remainder of the Veteran's service treatment records are negative for any complaints relating to his ears or hearing. Unfortunately, he was not given an audiogram at the time of his July 1970 separation examination. Although a whispered voice test showed normal hearing bilaterally, this test has been deemed unreliable. The Veteran's separation examination report, however, is significant for a notation that the Veteran claimed his health condition had not changed to his knowledge. He did not complain of any worsening hearing loss at that time or at any time during his military service. The earliest post-service audiogram of record is a VA audiogram dated in October 1990. At that time, the Veteran's hearing acuity was recorded as follows: HERTZ 250 500 1000 2000 4000 RIGHT 10 15 5 55 60 LEFT 10 15 5 55 60 These results do not show remarkably worsened hearing acuity from the Veteran's entrance audiograms with the exception of the findings at 2000Hz. Significantly, many of the October 1990 results actually demonstrate better hearing acuity than the May 1967 entrance audiograms. To the extent that the results at 2000Hz show worsened hearing acuity, there is no indication that this worsening occurred during the Veteran's active duty, as the 1990 audiogram is dated 20 years after separation. The post-service audiograms also include September 2000 and May 2003 audiograms from the Veteran's former employer, CSX Transportation, where he had been employed as an engineer beginning in November 1973. At the time of those audiograms, he denied any fluctuating, sudden, or rapid hearing loss and made no mention of an in-service worsening of his hearing loss. The September 2000 audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 15 20 65 50 55 80 80 LEFT 15 15 60 65 65 70 65 The May 2003 audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 40 30 70 65 60 65 75+ LEFT 20 20 60 70 70 70 80 As noted above, the Veteran was afforded a VA audiological examination in February 2010 to determine whether his pre-existing hearing loss disability was aggravated by his military service. The examiner reviewed the entire claims file, including the service treatment records and measured the Veteran's hearing acuity. The audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 80 70 65 LEFT 15 30 70 70 65 The examiner concluded that she could not determine if the Veteran's hearing loss was aggravated by military service because the Veteran's hearing was only tested by whispered voice test on separation, not by an audiogram. She indicated that whispered voice testing is unreliable as evidence of normal or impaired hearing and is particularly insensitive to high frequency hearing loss. In her February 2011 addendum opinion, the examiner again stated that she could not determine whether the Veteran's hearing loss was permanently increased in severity in service. However, she did note his denial of hearing loss during service, assertion that his health had not changed during service on his separation examination, and two decade period of employment in a noisy environment before the first medical evidence of worsened hearing loss. She concluded that in light of these factors, she was unable to state that his hearing loss became worse during service. Finally, VA solicited a VHA opinion in August 2012 in order to obtain a more thorough assessment of whether the Veteran's pre-existing hearing loss was aggravated by service. The VHA audiologist thoroughly reviewed the Veteran's claims file, including all of the in-service and post-service audiograms. Like the February 2010/February 2011 VA examiner, he concluded that the whispered voice test on the Veteran's separation examination did not provide valid results as to the Veteran's hearing acuity. However, he did note that the Veteran indicated that he had not experienced any changes in his health at the time of separation. He concluded that the Veteran's hearing loss was not aggravated by service because there was no significant decrease in the Veteran's hearing acuity between the entrance audiogram and the in-service audiograms and the Veteran did not complain of any changes in hearing acuity at the time of discharge. He further referenced the Veteran's lack of combat experience and military occupational specialty to support his conclusion. Finally, he noted that the earliest post-service evidence to support the Veteran's claim of increased hearing loss was an audiogram dated 20 years after his discharge from service and following a lengthy career in a hazardous noise environment. In light of these factors, the VHA audiologist simply could not conclude that the Veteran's pre-existing hearing loss disability underwent a permanent worsening during his military service. The Veteran submitted a letter and audiogram from his private physician, Dr. L. R. M., in November 2012. She diagnosed the Veteran with presbycusis, or age-related hearing loss. She noted his reports of in-service noise exposure from weaponry and aircraft and opined that the 1968 and 1969 in-service audiograms were "chronologically inconsistent creating some doubt." She did not further explain, but merely concluded that she professionally gave more credence to the entrance examination audiogram results and the 1990 post-service audiogram results. She did not discuss the Veteran's decades of post-service employment in a hazardous noise environment or attempt to explain or reconcile the lack of evidence of worsened hearing acuity until 20 years after separation from service. She concluded that it was at least as likely as not that in-service noise exposure caused or aggravated the Veteran's sensorineural hearing loss and was at least contributory to his current degree of age-related hearing loss. She did state that the evidence showed an in-service worsening of hearing acuity, only that the Veteran's current level of hearing impairment was related to service. As Dr. L. R. M.'s opinion does not consider the Veteran's post-service noise exposure or even opine that the Veteran's hearing loss worsened during service, as is required for a grant of service connection based on aggravation of a pre-existing disability, the Board finds that it is less probative than the August 2012 VHA audiologist's opinion which addresses all of the relevant in- and post-service factors and findings. The Board is free to favor one medical opinion over another as long as it provides an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). For the reasons discussed above, the Board finds Dr. L. R. M.'s opinion to be less probative than the August 2012 VHA audiologist's opinion. As such, it is insufficient to grant service connection on the basis of aggravation for bilateral hearing loss. Additionally, the Board has considered the Veteran's lay contentions, and is aware that the Veteran is competent to describe his symptoms in service and thereafter. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Specifically, the Veteran has asserted that he first noticed hearing loss after exposure to loud noises in service. However, he is not competent to attribute these symptoms to a measurable decrease in hearing acuity in service or to determine that his hearing loss underwent a permanent worsening in service. As there is no sufficiently probative medical evidence to support the Veteran's contentions or to show an increase in the Veteran's hearing loss disability while in service, the Board finds that an increase in severity in service may not be conceded, and that the pre-existing disability underwent no worsening in service. For the reasons explained above, the Board finds that the Veteran had bilateral hearing loss prior to his entry into service, and that, based on all of the evidence, there was no increase in the severity of the pre-existing hearing loss disability during or due to his military service. As such, the presumption of aggravation is not for application. The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss was aggravated during service. Accordingly, the Board finds that the claim of entitlement to service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs