Citation Nr: 1308815 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-27 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for hearing loss disability. REPRESENTATION Appellant represented by: Joseph Davis, Accredited Agent ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The appellant had service in the National Guard, from November 1984 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefit sought on appeal. The appellant appealed that decision to the Board, and the case was referred to the Board for appellate review. The appellant was scheduled for a Board hearing in August 2012, however he failed to report for the hearing. A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT Hearing loss disability did not manifest in service and is unrelated to service. CONCLUSION OF LAW Hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a pre-adjudication VCAA notice by letter, dated in January 2009. The appellant was notified of the evidence needed to substantiate the claim for service connection as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. The appellant's lay statements and private medical records from the Brooklyn Hospital Center have been associated with the file. In October 2009, New York Presbyterian Hospital verified that they did not have treatment records pertaining to the appellant's hearing loss on file. The Board notes that the appellant's service treatment records are missing. In February 2009 the National Personnel Records Center verified that the appellant's service treatment records could not be located. The appellant in January 2009 claimed that he was based at Fort Sill, which is in Lawton, Oklahoma. The Oklahoma National Guard in June 2009 and in July 2009 confirmed that they did not have the service records. In December 2009, the RO issued a memorandum of a formal finding on the unavailability of the service treatment records. Multiple duty to assist letters were sent to the appellant, including in March 2009, June 2009, July 2009, September 2009, November 2009, and in December 2009. In the December 2009 letter, the RO enclosed NA Form 13055. The appellant was asked to complete NA Form 13055 in order for a thorough search to be conducted for his military records, however he did not complete and return this form. The Board notes that the duty to assist a claimant is not a one way street, and to this extent the appellant has failed to cooperate to the full extent in the development of his claim. Olsen v. Principi, 3 Vet. App. 480 (1992); Wood v. Derwinski, 1 Vet. App. 406 (1991). In correspondence in December 2009, the VA Records Management Center also confirmed that they were unable to locate the appellant's service treatment records. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The only remaining question is whether VA was required to afford the appellant a VA examination pursuant to its duty to assist. The appellant contends his hearing loss is related to his National Guard service. As to whether this assertion warrants a VA examination as to the etiology of the hearing loss, under the VCAA, VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. As the discussion below reflects that the only evidence indicating that the current hearing loss may be associated with service is the appellant's conclusory generalized lay statement suggesting a nexus, there is insufficient evidence to warrant a VA examination. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately decide the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for a chronic disease, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is an organic disease of the nervous system. 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 a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). "Active military service" is defined by VA law and regulations. Active military, naval, or air service includes active duty, any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23)(C) ; 38 C.F.R. § 3.6(d). Analysis As an initial matter, the Board notes that the appellant did not engage in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable. In his claim in January 2009, the appellant stated that he lost his hearing during National Guard service in December 1984, when he was shooting a M16 rifle in a foxhole and was not issued ear plugs. His DD 214 Form shows that he was a cannon crewman. As noted, the appellant's service treatment records are unavailable, but the appellant indicated that he was not treated for hearing loss during his National Guard service. In February 2009, he stated that he was not treated when he was discharged and had no recollection of having his hearing tested during service. In May 2010 the appellant further stated that during National Guard service he reported his hearing problems to his drill sergeant, however his drill sergeant ignored his complaints. As to bilateral hearing loss disability, there are specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. Private medical records dated in November 2008 show the appellant had a prior medical history of hearing loss in his left ear. No audiometric studies were conducted to determine the appellant's auditory acuity. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). The only opinion in the file is that of the appellant. The appellant is competent to state that he has decreased hearing acuity. However, the appellant as a lay person is not competent to state that he has hearing loss disability as defined by 38 C.F.R. § 3.385, because such a determination is based on results of audiology testing that meet the standards of a hearing loss disability under 38 C.F.R. § 3.385. For this reason, a hearing loss disability under the criteria of 38 C.F.R. § 3.385 is not a simple medical condition that the appellant as a lay person is competent to identify. Nor is it a simple medical condition that the appellant as a lay person is competent to offer an opinion on. To the extent the appellant asserts that his hearing loss is related to service, the onset and etiology of such disorder is a complex medical matter beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Whether the appellant has a hearing loss disability that is related to service requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion. As the Board does not find the appellant to be competent to establish a diagnosis or address medical causation for his claim of service connection for hearing loss, the determination of whether the appellant's statements are credible is not reached. Accordingly, the appellant's opinion is of no probative value. The appellant is not service connected for any condition and was not discharged by reason of disability. The appellant's only service has been with the National Guard. Presumptive periods do not generally apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474 , 1 Vet. App. 474, 477-78 (1991). While sensorineural hearing loss, (an organic disease of the nervous system), is a chronic disease, in the instant case consideration of 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases first manifested after separation) for periods of ACDUTRA or INACDUTRA is not appropriate since his service is not active duty or active service. Further, there is no evidence, neither lay or medical, which shows that the appellant has sensorineural hearing loss. The only evidence of record are the appellant's statements that he has hearing loss. The hearing loss as claimed by the appellant is not included among the chronic diseases under 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a), therefore consideration of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not applicable. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 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 claim of service connection for hearing loss, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Service connection for hearing loss disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs