Citation Nr: 1313220	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  10-24 043	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty from February 1956 to December 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Veteran testified at a June 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.

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).


FINDINGS OF FACT

1.  The Veteran has been diagnosed with bilateral hearing loss and he is competent and credible to report the circumstances of his service and his symptoms.

2.  The reports of September 2009 and October 2012 VA audiological consultations are competent evidence that the Veteran does not experience hearing disability as the result of his active duty service.

3.  The preponderance of the evidence is against a finding that the Veteran has  hearing loss due to any incident of his active duty service.



CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the issues on appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

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. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (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(a). 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) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

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. 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"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1).

March 2009 and April 2009 pre-adjudication letters explained the evidence necessary to substantiate a claim for service connection. The letters also notified him how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). These letters were provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The Veteran's claim was previously addressed by the Board in September 2012.  A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet.App. 268 (1998). The previous remand requested that the Veteran be afforded a new audiological examination that addressed the entirety of the Veteran's bilateral ear condition. As the requested examination has been conducted, the issue now returns to the Board for appellate review.

The claims file contains service treatment records and reports of post-service medical treatment and reports of September 2009 and October 2012 VA audiological examinations. VA has a duty to ensure the resulting medical opinions are adequate. Barr v. Nicholson, 21 Vet.App.303, 312 (2007). The September 2009 VA examination noted that further examination beyond the audiogram was necessary to fully ascertain the Veteran's ear condition. The May 2011 examination addressed the entirety of the Veteran's ear condition and the report reflects review of the claims file, and interview with, and examination of, the Veteran. The May 2011 examination is adequate to decide this claim.

In Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the June 2012 Travel Board hearing, the undersigned Veterans Law Judges and representative for the Veteran engaged in colloquies with the Veteran as to substantiation of the claim. The Veteran was asked about and provided testimony regarding in-service noise exposure, post-service noise exposure, current hearing condition, available medical records, and a connection between his in-service noise exposure and current hearing condition. 

 Neither the Veteran nor his representative has identified any prejudice in the conduct of the Board's June 2012 hearing or contended that the Veteran does not fully understand the issue or the evidence that is required to substantiate his claim. The Board finds that any error in notice provided during the Veteran's hearing constitutes harmless error. See 38 C.F.R. § 20.1102. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal.    

The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claims. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012). 


Service Connection

The Veteran seeks service connection for a hearing disability claimed as the result of in-service noise exposure during his active duty from 1956 to 1957. Although his service records reflect that the Veteran served in the Army on a field communication crew, the preponderance of the evidence is against the claim and the appeal will be denied. 38 C.F.R. § 3.102.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). 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). 

Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. See also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999). 

The requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McLain v. Nicholson, 21 Vet. App. 319 (2007). 

Certain chronic disabilities, to include certain types of hearing loss to the extent they may constitute an organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

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 or 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. 

The Court of Appeals for Veterans Claims has endorsed VA's interpretation of the law which indicates that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993), citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet.App. at 160.

The Veteran reported in his application for service connection that he was exposed to artillery fire from a 105 m.m. howitzer which caused pain in his ears, particularly the right ear. The Veteran alleged that pain has continued throughout the years. He stated that while on field duty, he once sought medical care because of pain in his ears, but there is no evidence of record noting any treatment. 

The Veteran's active duty service treatment records reflect normal hearing at the time of his entry into service with the Veteran scoring a 15/15 on the whispered voice test. The records are silent for any complaints of hearing difficulty and his hearing again tested as normal at the time of his discharge with the Veteran scoring a 15/15 on the whispered voice test on his November 1957 separation examination.   

The Veteran's service treatment records are negative for any complaints or treatment for hearing problems, and do not show hearing loss as defined in 38 C.F.R. § 3.385 (2012). His Report of Separation from the Armed Forces (DD-214) documents his service in an artillery unit, and that his military occupational specialty was field communication crewman. The Veteran reported that he was exposed to loud noises during service, particularly artillery fire. Based on the Veteran's military occupational specialty and the unit of his service, the Veteran's contentions regarding his in-service exposure to acoustic trauma are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). 

However, there is no competent evidence linking the Veteran's hearing loss to service. A VA audiological examination was afforded in September 2009. The Veteran reported decreased hearing in the right ear more than the left with periodic pain in the right ear, but no pattern to the occurrence. The examiner diagnosed him with a slight high asymmetric high frequency sensorineural hearing loss appearing cochlear in nature with normal word understanding ability bilaterally. The Veteran's audiological examination revealed bilateral hearing loss for VA purposes. The examiner further stated that there was an absence of complaint of hearing loss in the service treatment records. Significantly, the examiner observed that hearing loss due to acoustic trauma occurs at the time of the incident and is not delayed in onset; and that all evidence would indicate that the Veteran's slight hearing loss would have occurred after his period of active duty service. The Veteran stated the pain started when he was on the firing range and working with a Howitzer. Finally the Veteran noted a positive noise history in civilian life as a tool and die  maker. 

The Veteran testified before a decision review officer (DRO) in March 2011 and stated that he did not have any noise exposure post-service and that the September 2009 examination report was inaccurate. The DRO also informed the Veteran that he needed to obtain evidence that linked his acoustic trauma in service to his current bilateral hearing loss. Bryant, supra. The Veteran then testified at a Travel Board hearing before the Board and again reported that he had not had post-service noise exposure and that his current hearing loss was the result of acoustic trauma in service. 

Given the discrepancy in the Veteran's testimony and the September 2009 VA examination, as well as the lack of a medical opinion from an ENT specialist, the claim was remanded for a new examination and opinion. A new VA examination for ear conditions as well as audiological testing was afforded in October 2012. The Veteran noted that he had periodic ear pain that had been present for 40 or 50 years. He described it more as a feeling of numbness than an actual pain. He further noted hearing loss. The Veteran reported post-service noise exposure on the rare occasions when he had to work on the production floor, but noted that he had always worn hearing protection. 

Upon physical examination his external ear, ear canal, tympanic membrane, and gait were all normal. It was determined that the Veteran did not have otalgia, or any ear or peripheral vestibular condition, either in service or currently. The examiner opined that it is less likely than not that he has hearing loss or an ear condition due to or arising from his military service in any way because he did not currently have any ear disorder and there was no evidence of a past ear disorder. The Veteran was also afforded an audiological examination. The Veteran did not meet the VA standard for bilateral hearing loss as both the right and left ear were normal according to the audiometry test. The examiner did note that the left ear showed an abnormal word recognition score, but stated that an atypical word recognition score with normal hearing thresholds suggested causal factors unrelated to noise exposure. The examiner acknowledged that the Veteran's in-service whispered voice tests could not rule out hearing loss, but given the absence of hearing loss at the time of the examination that met the VA criteria currently, the Veteran did not have hearing loss. The examiner opined that the Veteran did not have hearing loss that was caused by or the result of an event in military service. 

The Veteran stated at various times in the record that he had received audiological testing associated with his post-service employment. He reported that he received periodic examinations through Occupational Safety and Health Administration (OSHA) and his original employer, the American Company. The company closed in 1988 and all records, to include ear examinations were transferred to Rexam Center. Rexam replied to requests for records noting that they were transferred to Alcam. Alcam provided a negative reply with regard to records in July 2009. 

The Veteran has a current bilateral hearing loss disability pursuant to the VA criteria as noted in the September 2009 VA examination. See 38 C.F.R. § 3.385; McLain v. Nicholson, 21 Vet. App. 319 (2007). However, the Veteran's current bilateral hearing loss disability is not found to be related to or caused by any event in service.

The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet.App. 30 (1993), and Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this case, the Board places greater weight of probative value on the opinions of the VA September 2009 and October 2012 VA examiners who provided a detailed explanation for their opinions based on sound medical principles and the Veteran's past medical history. No positive medical opinion with regard to etiology was provided.

The Veteran contends that he has experienced hearing loss from active service through the present time. Service treatment records included no reference to complaints of hearing loss. While the absence of any mention of any complaints in the service treatment record is not dispositive to a denial of the claim, as it bears upon medical nexus evidence, the first documented complaint of any hearing problems comes from the Veteran's February 2009 claim more than five decades after his discharge from active service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim). The fact of this chronology in addition to noted post-service noise exposure must be considered as it bears upon the question of nexus between the claimed hearing disabilities resulting from service and the current diagnosis.

While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion as to the etiology of his hearing loss. The Veteran is not competent to opine on medical matters such as diagnoses or etiology of medical disorders, and his opinion as to his bilateral hearing loss and its relationship to his service is therefore entitled to no weight of probative value. See Cromley v. Brown, 7 Vet.App. 376, 379 (1995). 

Most critically, the Veteran's essential contention of a nexus between the in-service noise exposure and his current diagnosis has been fully investigated as mandated by the Court's decision in Jandreau. The Veteran initially stated at his September 2009 VA examination that he was a tool and die  maker. He later reported he was a tool and die  engineer and that he worked in a laboratory on the draft team. The Veteran also repeatedly noted that there were regular hearing examinations provided by his employer. Those records were unobtainable, but it is reasonable to assume that if hearing tests were required, the Veteran's job involved noise exposure. The Veteran's contentions that he had very little post-service exposure and always wore hearing protection notwithstanding, the September examiner found that given the fact that the Veteran had post-service noise exposure it was more likely that his hearing loss was not related to his active duty service, but rather the post-service noise exposure. Finally, it was determined by the October 2012 VA examiner that the Veteran did not have any other ear condition that could be related to his active duty service.

The Board finds the evidence against the claim to be more probative than the evidence in favor of the claim. Therefore, the Veteran's claim for service connection for bilateral hearing loss will be denied. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine in not applicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet.App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs