Citation Nr: 1313058	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  10-10 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


ATTORNEY FOR THE BOARD

Shamil Patel, 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 served on active duty from September 1940 to October 1960.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for bilateral hearing loss.  The matter has since been transferred to the RO in Roanoke, Virginia.

This matter was previously remanded by the Board for additional evidentiary development in February 2013, and now returns to the Board for further review.


FINDING OF FACT

Bilateral hearing loss has not been shown to be etiologically related to service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

A.  Duty to Notify

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2012).  Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
	
Prior to the initial adjudication of the Veteran's claims, a letter dated in July 2008 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  He was also notified of the criteria for establishing an effective date and disability rating.  See Dingess.  Therefore, he received complete notice regarding his claim for service connection.



B.  Duty to Assist

The Veteran's service treatment records, service personnel records, VA treatment records, private treatment records, and lay statements have been associated with the claims file.

Pursuant to the Board's February 2013 remand, the Veteran was also afforded a VA examination.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The VA examination obtained in this case is adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; and documents and considers the relevant medical facts and principles.  Notably, examiner was unable to provide an opinion as to the etiology of the Veteran's hearing loss without resort to speculation.  The U.S. Court of Appeals for Veterans Claims (Court) recently held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence.  Id at 390.  As discussed below, however, the examiner in this case provided a basis for the speculative opinion.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  The directives of the February 2013 remand have been satisfied.  Stegall v. West, 11 Vet. App. 268 (1998).


Service Connection

A.  Applicable Law

In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

For a 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 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.  If 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).  However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies 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 (2012).

Section 3.385 of Title 38, Code of Federal Regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  When audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Id. at 160.  The threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. at 157.


B.  Evidence and Analysis

Examinations dated September 1940, September 1946, September 1950, November 1955, October 1960, and October 1964 noted hearing to be 15/15 on whispered voice tests.  The Veteran reported a history of ear trouble in October 1964, noted to be an occasional spontaneous left sided earache related to postural changes.

During a May 1969 quadrennial examination, the Veteran reported a history of decreased hearing during the past 3 years, and it was noted that he worked in a machine shop.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
NR
30
LEFT
25
10
10
NR
15

In a July 2008 statement and subsequent submissions, the Veteran reported that he was on board the USS Turner when it was struck by a torpedo and sank.  The explosion threw him across the ship, and he experienced bleeding and ringing in his ears.  A ship history submitted by the Veteran indicated that the incident occurred in 1944.  A statement from the Veteran's wife also indicated that he had current hearing loss.

A VA examination was conducted in March 2012.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
45
50
50
LEFT
50
45
45
55
60

Speech audiometry revealed speech recognition ability of 94 percent bilaterally.  The examiner diagnosed bilateral hearing loss.  However, she stated that she was unable to comment on the etiology of the Veteran's condition without resorting to mere speculation.  She explained that only whisper tests were done while the Veteran was in service.  This was not a valid diagnostic test and was not sensitive to high frequency hearing loss.  A quadrennial exam showed mild hearing loss in the right ear.  However, with no audiogram prior to, during, or upon exit from service, it was not possible to determine if the mild hearing loss was a result of any event or injury in service.  She noted that the May 1969 examination did not reflect hearing loss for VA purposes, and that noise only affects hearing when the noise occurs.  There was no continuing or progressive effect, and any additional hearing loss the Veteran now had occurred subsequent to retirement.

Based on the evidence, the Board finds that service connection for bilateral hearing loss is not warranted.  Although the Veteran is currently diagnosed with the condition, the evidence is against a finding that it was incurred in or otherwise related to his period of service.

Initially, the Board notes that the Veteran was granted service connection for PTSD based in part on his exposure to the 1944 incident aboard the USS Turner.  Therefore, noise exposure in service is conceded.  However, the VA examiner in this case could not comment on the etiology of the Veteran's condition without resorting to mere speculation.  The examiner provided a basis for this conclusion,  explaining that only whisper tests were done while the Veteran was in service, that this was not a valid diagnostic test and was not sensitive to high frequency hearing loss, and that with no audiogram prior to, during, or upon exit from service, it was not possible to determine if the mild hearing loss was a result of any event or injury in service.  

The examiner did, however, note that the Veteran's May 1969 examination did not reveal hearing loss for VA purposes, that noise exposure had an immediate effect, and that any hearing loss the Veteran now has occurred subsequent to his retirement.  Therefore, while the examiner's opinion was ultimately speculative, her explanation essentially states that hearing loss for VA purposes was not present several years after the effects any noise exposure or injury in service would have occurred.  

The Board has considered the Veteran's own statements and those of his wife made in support of his claim.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the etiology of hearing loss, this falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)."  Therefore, while their statements have been considered, they are not considered to be competent medical evidence and do not establish a link between the Veteran's current hearing loss and service.

In addition, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In this case, however, the Veteran has not argued that he has experienced continuous hearing loss symptomatology since service.  The earliest evidence of any disability was from the May 1969 examination, but the Veteran reported only a 3 year history of hearing loss at that time.  Therefore, his reports of symptoms do not date back to his period of service.  As such, the Board finds that the probative evidence is against the claim based on continuity of symptomatology.

In sum, the preponderance of the evidence is against finding that the Veteran has bilateral hearing loss etiologically related to active service.  The appeal is accordingly denied.  In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim.

ORDER

Service connection for bilateral hearing loss is denied.


____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs