Citation Nr: 1313549	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  05-34 330	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for bilateral sensorineural hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Zenzano, Associate Counsel
 

INTRODUCTION

The Veteran served on active duty from September 1963 to August 1966.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

In December 2007, the Veteran testified at a hearing held before the undersigned Veterans Law Judge.  A transcript is associated with the claims file.

In March 2008, November 2010 and July 2012, the Board remanded this claim for additional development.  The clam is now ready for appellate review.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.  


FINDING OF FACT

Bilateral sensorineural hearing loss did not have its onset in service; did not manifest within one year of service; and is not attributable to service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral sensorineural hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process Considerations

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. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R.  § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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-compliant 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, to include the AMC).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id. 

In this appeal, in a May 2003 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  A May 2007 letter reiterated the above criteria, and provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  As the Veteran's claim was readjudicated subsequent to this May 2007 letter-which meets the content of notice requirements described in post-2005 Dingess/Hartman and Pelegrini case law-such notice is not defective.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, and the reports of October 2009, November 2011 and August 2012 VA examinations/opinions.  Notably, the Board previously determined that the October 2009 and November 2011 VA examination opinions were inadequate.  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).  Consequently, another VA opinion was sought pursuant to the Board's July 2012 remand.  The Board finds that this opinion, dated August 2012, is more than adequate.  The VA examiner considered all of the pertinent evidence of record, to include the Veteran's service treatment records, personal statements and history, and provided detailed rationale for the opinion stated.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding this issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Of note are the Veteran's assertions that he was treated by a private ear, nose and throat physician, Dr. Weddington, for "some hearing loss" following an October 1979 automobile accident.  These treatment records are not in the claims file.  In May 2008, VA sent the Veteran a VA form 21-4142, Authorization and Consent to Release Information, to secure records from Dr. Weddington.  The Veteran responded in a June 2009 letter that Dr. Weddington was retired, and he was unable to locate him or those records.  The Board finds that further attempts to obtain this additional evidence would be futile.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).  Accordingly, VA has fulfilled its duty to assist the Veteran in obtaining medical records. 

Also of record and considered in connection with the claims are various statements, including hearing testimony, provided by the Veteran and by his representative, on his behalf.

For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and, accordingly, the Board will proceed to a decision.  

II.  Legal Criteria

Service connection may be granted 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(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) .

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.

Certain diseases, chronic in nature, may be presumed to have been incurred during the active military service, if the evidence shows that the disease became manifest to a degree of 10 percent or more within one year from separation from active duty, even though there is no evidence of the disease during the active military service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  Organic disease of the nervous system, including sensorineural hearing loss, have been identified as a chronic disease subject to presumptive service connection under 38 C.F.R. 
§ 3.309(a).  Id.  

Service connection may only be granted if claimed hearing loss is of sufficient severity to be considered a disability for VA purposes.  Specifically, 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.  


III.  Analysis

The Veteran seeks service connection for bilateral sensorineural hearing loss, which he asserts is due to noise exposure from working nearby artillery fields, or, in the alternative, from an infection resulting from a gunshot wound to the head above his right eye.

As delineated below, the Veteran is unable to establish entitlement to service connection on a direct or presumptive basis, nor through demonstrating continuity of symptomatology.

Here, the Veteran has a current diagnosis of bilateral sensorineural hearing loss meeting VA standards.  See November 2011 VA audiological examination.  The Board previously conceded that the Veteran had in-service noise exposure, as he claims he was stationed near an artillery field, and he is competent to attest to such factual matters.  See Washington v. Nicholson, 19 Vet. App. 363 (2005), and November 2010 BVA remand.  Service treatment records reflect that the Veteran was struck under his right eye in February 1964, and his allegation that it was, in fact, a gunshot wound, has also been conceded.  Thus, the first and second elements of service connection on a direct basis have been established.  

As to the third element of direct service connection, there is no competent evidence of record linking the Veteran's bilateral hearing loss to his service.  A review of the evidence shows that the service treatment records document that the Veteran entered service with the following audiometric results (converted from ASA units to ISO units:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
10
15
0
LEFT
15
15
10
5
-5


While in service, treatment records are silent for hearing-related complaints.  Upon separation, the Veteran denied ear trouble and had the following audiometric results:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
15

15
LEFT
15
15
15

15


Post-service, the first objective documentation of hearing loss complaints occurred in December 2000.  Audiogram data at 500, 1000, 2000, 3000 and 4000 Hertz was not made available; however, the Veteran's right ear was reported to be within normal limits, sloping slightly to a mild sensorineural hearing loss at 8 KHz, and his left ear showed moderate sensorineural hearing loss, though some results were inconsistent.  The Veteran reported that his hearing loss began in the late 1960's, and that it had worsened in the last four or five years.  He stated that he went to an ear doctor due to severe pain in his left ear in the late 1970s.  He also reported noise exposure from working at the airport.  See December 2000 VA treatment note.

In September 2002, the Veteran's hearing was again evaluated.  Again, audiogram data at 500, 1000, 2000, 3000 and 4000 Hertz was not made available; however, testing revealed right ear mild sensorineural hearing loss and left ear moderately severe sensorineural hearing loss.  He was prescribed a left ear hearing aid.

The Veteran underwent another audiogram in September 2003, where he mentioned, in addition to his in-service noise exposure, that he was exposed to excessive noise from firing ranges during his career with the police, and that he had been target shooting a few times over the years.  He reported that he wore hearing protection in both scenarios.  Audiogram results showed right ear mild sensorineural hearing loss and left ear mild to moderate sensorineural hearing loss.  Specific audiogram data was as follows:


 


HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
30
40
35
LEFT
40
50
40
40
40


In October 2009, VA requested an examination and nexus opinion with regard to the Veteran's hearing loss.  Audiological testing revealed the following:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
20
35
30
40
40
LEFT
25
25
30
35
40

This examination was deemed insufficient because the examiner concluded that hearing loss was not related to service since it was not shown in service or in the year after service, thereby violating Hensley, supra.  Additionally, the examiner found that hearing loss was not related to a head injury in service as there was no documentation of a head injury.  The Board found that the Veteran's reports of a head injury were credible and should have been considered as evidence that such an injury occurred. 

In November 2011, an opinion was again obtained.  Audiological testing revealed the following:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
40
45
45
LEFT
30
30
35
35
40

The examiner opined that given the Veteran had normal hearing at entrance and discharge with no significant shift in threshold, his hearing is not the result of noise exposure, acoustic trauma or injury.  Similarly to the October 2009 VA opinion, the examiner impermissibly rested his opinion on the fact that hearing loss was not related to service since it was not shown in service or in the year after service, contrary to Hensley.  Accordingly, this opinion was found to be inadequate.

In August 2012, an addendum opinion was procured.  The VA examiner found that the Veteran's sensorineural hearing loss was not caused by injury, acoustic trauma, or infection that occurred during the military.  With respect to the Veteran's assertion that his hearing loss stems from an infection due to the gunshot wound to his head, the examiner noted that one would expect to see a mixed or conductive hearing loss should the infection have affected the Veteran's right ear, and not sensorineural hearing loss, which the Veteran has.  They examiner also noted that the Veteran did not have right ear hearing loss as late as December 2000.
Regarding the argument that the Veteran's hearing loss is the result of in-service noise exposure, the examiner noted that no noise notch or high-frequency hearing loss was shown at the Veteran's exit audiogram or at subsequent hearing exams.  The examiner stated that hearing loss caused by acoustic trauma typically results in a noise notch at or around 2000 Hertz to 4000 Hertz, or a high-frequency hearing loss.  Accordingly, he opined that the Veteran's hearing loss in both ears was as likely as not due to post-service occurrence or aging.  

Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is highly probative evidence against the claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").  

Though the Veteran asserted during the December 2007 Board hearing that a physician told him in the 1970s that his hearing loss was related to his in-service noise exposure, the Veteran stated that those records were unavailable.  See Hearing Transcript at 22-23.  The Veteran has not submitted any medical evidence that establishes a link between his bilateral hearing loss and service.  As such, there is no medical evidence to refute this highly probative August 2012 opinion.  Consequently, service connection on a direct basis is not warranted.

Service connection based on continuity of symptomatology is also not established on the facts.  In this regard, the Veteran is certainly competent to testify concerning his history of difficulty hearing dating back to service, because this is capable of lay observation and experience.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); and 38 C.F.R. § 3.159(a)(2).  

However, the Board finds the Veteran's lay statements of hearing loss symptoms dating back to service to simply not be credible, because they are inconsistent with the record.  As noted above, the Veteran did not report having any hearing problems in service or at service separation.  Even assuming that the Veteran was treated for some hearing loss in 1979, in 2000, only his left ear was found to exhibit moderate sensorineural hearing loss, and it was noted that some results were inconsistent; his right ear was found to be within normal limits.  In addition to there being no findings of hearing loss for many decades following service, the Veteran, in his initial application for compensation, indicated that his hearing loss problems had their onset in 1999.  The above evidence is more probative than his recent assertions that his current hearing loss had their onset in service, voiced many years after service.  Furthermore, if the Veteran were having hearing loss problems since service, it is reasonable to assume he would have filed a claim for compensation years earlier.  Additionally, while the Veteran may have had some hearing loss during this time period, he is not competent to state that his loss met the requirements of 38 C.F.R. § 3.385.  The Board finds the Veteran's lay statements of hearing loss symptoms dating back to service are not credible, and thus not probative in support of his claim.

Moreover, the Board notes the multi-year gap between discharge from active duty service (1966) and the Veteran's alleged initial treatment for hearing loss in 1979.  There is over a decade between discharge and initial recorded complaints of symptoms.  The record does not contain any interim complaints of hearing loss.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service").

For the foregoing reasons, the Board finds that service connection based upon continuity of symptomatology is not warranted. 

Finally, as evidenced, the record also fails to show by objective evaluation that the Veteran manifested bilateral sensorineural hearing loss to a degree of 10 percent by August 1967 (within the first year of separation).  Service connection on a presumptive basis is thereby not established.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  As such, the claim of entitlement to service connection for bilateral sensorineural hearing loss is denied.


ORDER

Entitlement to service connection for bilateral sensorineural hearing loss is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs