Citation Nr: 1313307 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-38 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from December 1960 to December 1964. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the St. Paul, Minnesota Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for bilateral hearing loss. In April 2012, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the proceeding is of record. FINDINGS OF FACT 1. Audiologic testing during service did not show disabling hearing impairment. 2. Bilateral sensorineural hearing loss was not shown by testing until many years after service and the weight of the probative evidence is against a finding that current sensorineural hearing loss is etiologically related to the Veteran's active military service. CONCLUSION OF LAW Bilateral sensorineural hearing loss was not incurred or aggravated in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in a letter issued in September 2009, before the January 2010 rating decision that the Veteran has appealed. That letter addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, the report of VA medical examinations, and a transcript of a videoconference hearing the Veteran had in April 2012 before the undersigned Acting Veterans Law Judge. The Veteran has had a VA medical examination that was adequate for addressing his hearing loss service connection claim. In April 2012, the Veteran and the Appellant were provided an opportunity to testify during the hearing before the undersigned Veterans Law Judge (VLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Board VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the April 2012 BVA hearing, the undersigned VLJ identified the issue on appeal. The symptoms of his hearing loss disability were discussed. Not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, at 497. For instance, testimony was elicited describing hearing loss symptoms in service, continuity of symptoms since service, medical treatment for hearing loss, and the existence of medical evidence addressing the likely etiology of the hearing loss disability. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board further finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument and reporting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Hearing Loss The Veteran contends that he has hearing loss as a result of noise exposure during service. He also sought, and the RO granted, service connection for tinnitus. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including sensorineural hearing loss, may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Organization for Standardization (ISO) units to facilitate comparison of results. In the Hensley case, the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." 5 Vet. App. at 159. The Court explained that: [W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 5 Vet. App. at 160. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The report of medical examination of the Veteran in December 1960 for entrance into service indicates that the examination included only whispered voice testing of the Veteran's hearing, and no audiometric testing. In a November 1964 medical history, the Veteran did not report having any ear trouble. The report of a November 1964 service separation examination showed: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 -5 0 -5 LEFT 0 -5 0 5 0 When converted from ASA to ISO units, those test results would read: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 10 0 LEFT 15 5 10 15 5 The Veteran does not report that his hearing was tested during the year following his separation from service. On VA audiology examination in December 2009, the Veteran reported that during service he was exposed to extreme noise levels while working around very large generators in a diesel power plant. He stated that he did not have occupational noise exposure after service. As for recreational noise exposure, he reported that after service he hunted deer annually until about 1995. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 65 70 LEFT 25 20 30 65 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. The examiner expressed the opinion that more likely that the current hearing loss was not related to noise exposure the Veteran experienced during service. The examiner explained that the Veteran's hearing loss was within normal limits at separation from service, and that based on his hearing thresholds at separation from service it was not possible that he incurred a significant shift in his hearing during his service. In his April 2010 notice of disagreement and his September 2010 substantive appeal, the Veteran reported that during his service duties operating a diesel power plant he had to take a hearing test every six months. He stated that there were negative consequences for the service members if they failed the tests. He indicated that a fellow service member told him how to trick the tests to pass them, and that he did so. The Veteran expressed that he must have passed the separation examination hearing test the same way. In the substantive appeal, the Veteran described in more detail the extreme noise levels to which he was exposed during eight hours shifts over a two year period. The Veteran asserted that he has had hearing loss since service. He stated that beginning soon after service his wife told him that he set the television volume too loud and that she had to speak more loudly to him for him to hear. He indicated that since service he has had great difficulty hearing on the telephone, and that this has become a lot worse. In a June 2010 statement, the Veteran's brother recalled that when the Veteran returned from service he often asked him to repeat what he said to him. The brother stated that the Veteran said that he had difficulty hearing because of having worked during service around loud noise from diesel engines. The brother wrote that it was very obvious that the Veteran had lost considerable hearing ability while he was in service. The RO returned the Veteran's claims file to a VA examiner for clarification of the December 2009 opinion that the Veteran's hearing loss was not due to his military noise exposure. A VA physician reviewed the claims file. The physician converted the results of the Veteran's November 1964 separation examination from ASA to ISO units. The physician found that the Veteran's current bilateral sensorineural loss was not due to military acoustical trauma. The physician noted that the Veteran did not have hearing loss at separation from service and did not have a shift in hearing levels during service. The physician also provided the following rationale that studies have shown that the most pronounced effects of a given noise exposure on puretone thresholds are measurable immediately following the exposure, and that if hearing is normal on discharge, there is no evidence of hearing damage due to military noise exposure. In September 2011, a VA physician converted the November 1964 to American National Standards Institute (ANSI) units, and reported that the levels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 10 5 LEFT 15 5 10 15 10 The physician concluded that in 1964 there was no hearing loss by VA standards. The physician found that no shift in hearing was documented in service because there was no audiometric testing in the entrance examination. The physician stated that even if a shift had been documented, the previous opinion, that current hearing loss is not due to noise exposure during service, is valid. In the April 2012 Board videoconference hearing, the Veteran reported that he was exposed to extremely loud noise in his duties operating power plants that used huge diesel engines. He stated that hearing protection was available at only one of the two locations, and it was made of a hard material and painful to wear, so he did not wear it. He indicated that while he was still in service he noticed that he had difficulty hearing speech even when he was away from the power plant. He stated that from separation from service his family members told him that they had to speak loudly for him to hear them. The Veteran contended that a shift in his hearing during service might have been shown if his entrance examination had included audiometric testing. The Board has reviewed the evidence of record but finds that the preponderance of the evidence is against the claim. First, the hearing levels shown on the Veteran's service separation examination do not constitute impairment that is considered a disability for VA benefits purposes. While the Veteran reported that he probably tricked the hearing test on the separation examination, there is no objective evidence to support that contention, and the contention is not credible. The Board accepts the separation test results as accurate and notes that in any case there is no objective documentation of disabling hearing loss at separation. The Board acknowledges that it is unfortunate that the lack of audiometric testing at the Veteran's entrance examination left no opportunity for a reliable measurement of any change in the Veteran's hearing during service. The Veteran and his brother have provided credible recollections of the Veteran's difficulty hearing during service, immediately after separation from service, and since. Those recollections, however, cannot show when he came to have hearing impairment that constitutes a disability for VA benefits purposes. Moreover, the Board cannot ignore the fact that there is no objective medical evidence showing a hearing loss disability for many years following service discharge. While this fact does not constitute negative evidence, it is a factor the Board has considered in adjudicating the claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the Veteran's current bilateral sensorineural hearing loss cannot be presumed to be service connected. Without any recorded measurement of his hearing during the year following his separation from service, it cannot be shown whether hearing loss became manifest to a degree of 10 percent disabling or more during the year following service. 38 C.F.R. § 3.307 (2012). Finally, the weight of the competent medical evidence is against the claim. Two VA examinations have reviewed the Veteran's hearing loss but determined that it is less likely related to service. They have supported their opinions with rationales indicating that because hearing loss was not shown in service it is unlikely that the current hearing loss is related to service. The Board affords these medical opinions greater probative weight than the Veteran's lay opinion as to the etiology of the hearing loss disability. The Veteran has not presented or identified competent medical opinion evidence in support of the claim. Accordingly, because the preponderance of the evidence is against the claim, it must be denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs