Citation Nr: 1314094	
Decision Date: 04/29/13    Archive Date: 05/15/13

DOCKET NO.  07-06 336	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina



THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to a disability rating for cancer of the larynx in excess of 10 percent.



REPRESENTATION

Appellant represented by:	The American Legion



INTRODUCTION

The Veteran had active service from June 1963 to June 1967.  

This matter comes before the Board of Veteran's Appeals (Board) on appeal from June 2005 and September 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  In the June 2005 rating decision, the RO denied reopening the Veteran's claim for service connection for bilateral hearing loss.  In the September 2006 rating decision, the RO reduced the evaluation for cancer of the larynx from 100 percent to 10 percent effective from December 1, 2006.  

The Board issued a decision in December 2010 that reopened the claim for service connection for hearing loss, but remanded the merits of that issue, as well as the increased evaluation claim, for further development.  The case has since been returned to the Board for appellate review.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal for service connection for bilateral hearing loss.

The issue of an increased rating for cancer of the larynx is addressed in the REMAND section below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C.  



FINDINGS OF FACT

1.  The Veteran was found to have bilateral hearing loss on his official service entrance medical examination, and thus, he had bilateral hearing loss that preexisted his entrance into active service.   

2.  The Veteran has not been shown by the evidence to currently have bilateral hearing loss that is related to any aggravation during service of his preexisting disorder or otherwise etiologically related to his military service. 


CONCLUSION OF LAW

Bilateral hearing loss was not aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

In this case, the Veteran was sent a notice letter in March 2005 that informed of the evidence necessary to substantiate a claim for service connection and of the division of responsibilities in obtaining such evidence.  He was also provided a letter in March 2006 that explained how disability ratings and effective dates are determined.  After the notice was provided, the Veteran's claim for service connection for hearing loss was readjudicated in a January 2007 statement of the case (SOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case).

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim being decided herein.  The Veteran and his representative have not identified any outstanding evidence pertinent to hearing loss.

Moreover, in compliance with the December 2010 remand, the Veteran was afforded a VA examination in April 2011 in connection with his claim for service connection for bilateral hearing loss.  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).  As discussed below, the Board finds that the April 2011 VA examination and November 2011 addendum opinion in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the post-service medical records contained in the Veteran's claims file.  The examiner considered all of the pertinent evidence of record, to include the statements of the appellant and a physical examination, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4).

For these reasons, the Board concludes that VA has substantially complied with the notice and assistance requirements and that the appellant is not prejudiced by a decision on the claim at this time.


Service Connection for Bilateral Hearing Loss

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). 

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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111.  History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). 

Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence).  It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part).  Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. 

A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979).  Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law.  Accordingly, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). 

Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). 

Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b).  The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1).

The Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a).  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36 (1994); 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.  Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss.  At the outset, the Board notes that the presumption of soundness does not apply, as the Veteran was noted to have bilateral hearing loss at the time of his enlistment examination in March 1967.  Specifically, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
30

60
LEFT
25
15
40

60

Speech recognition ability was not noted for either ear.  These audiological findings clearly indicate that he had hearing loss as defined by 38 C.F.R. § 3.385.  Therefore, the Veteran had bilateral hearing loss prior to his period of military service.  As such, the Board notes that the concerns addressed by the General Counsel's opinion regarding whether the presumption of soundness can be rebutted are not present in this case and that the Board's adjudication of this claim for service connection may proceed based on aggravation.

Having determined that the Veteran had preexisting bilateral hearing loss, the Board must then determine whether there had been any worsening of the disability during service, and if so, whether this worsening constitutes an increase in disability.

The Veteran's service treatment records contain an undated audiogram as well as a physical profile report in which he was noted to have "defective auditory acuity."  During his separation physical examination in March 1967, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
40
60
LEFT
5
0
35
55
65

The Veteran's speech recognition ability was not noted for either ear.

The Veteran was later afforded a VA audiological evaluation in January 1982, in which pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
30
80
85
LEFT
10
15
65
80
85

The Veteran's speech recognition ability was 94 percent in the right ear and 92 percent in the left ear.  Upon reviewing the claims folder, the examiner noted that there was no significant shift in hearing levels between the May 1963 and March 1967 examinations, except that his hearing improved in his right ear at 2000 Hertz.

During a VA audiological evaluation in September 2005, the Veteran was diagnosed with mild sloping to profound sensorineural hearing loss bilaterally.  The examiner noted that the Veteran had significant high frequency hearing loss prior to service without any decrease found at separation.  Therefore, he opined that it was less likely than not that the Veteran's hearing loss was due to his military service.

Pursuant to the Board's remand instructions, the Veteran was afforded an additional VA audiological evaluation in April 2011, during which pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
70
105+
105+
LEFT
20
65
75
105+
105+

The Veteran's speech recognition ability was 80 percent in the right ear and 74 percent in the left ear.  The Veteran reported having in-service noise exposure from aircraft engines, generators, and enemy mortars.  He stated that he had worked for 19 years as a police officer after service during which he performed annual weapons qualifying with hearing protection.  At the time of the examination, he was employed as a mechanic and reported occasional power tool use with hearing protection.  The examiner diagnosed him with bilateral profound sensorineural hearing loss.  

In a November 2011 addendum, after reviewing the claims file, the April 2011 examiner observed that there were no significant changes in the Veteran's hearing when comparing the separation and entrance examinations.  She also noted that the Institute of Medicine Committee on Noise-Induced Hearing Loss and Tinnitus Associated with Military Service from World War II to the Present has concluded that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.  Consequently, she opined that it is less likely than not that his pre-existing hearing loss was aggravated in service beyond the normal progression.  

After carefully reviewing the relevant evidence, the Board finds that the Veteran's preexisting hearing loss was not aggravated by service.  At his separation physical, he did not report any hearing loss, and his auditory thresholds did not decrease since his entrance examination.  Moreover, while the evidence shows that the Veteran's current hearing loss is worse than it was in service, there is no indication that his preexisting disorder increased beyond the natural progression of the disorder during or because of service.  Rather, the medical opinions of record conclude that the Veteran's hearing loss was not aggravated by his military service.  

The Board does acknowledge a private medical record dated in March 1980 indicating that the Veteran had hearing loss for several years since his military service wherein he had noise exposure.  However, this opinion does not address whether the Veteran's preexisting hearing loss was aggravated by service, which is the crux of the issue given that the presumption of soundness does not apply.  As such, the March 1980 private medical record has little probative value.

The Board also observes the Veteran's statements and those of his acquaintances who contend that he did not have hearing loss prior to service, and even if he did, that his hearing loss worsened in service.  Laypersons are competent to describe symptoms and other observations of which they have first-hand knowledge.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  In this case, however, the Board finds that the objective data recorded in the audiological evaluations directly address the criteria by which hearing loss is evaluated.  Such objective data clearly show that he had preexisting hearing loss with no measured worsening during service.  Moreover, VA examiners have reviewed all of the evidence and rendered medical opinions finding that there was not worsening or aggravation during service.  As such, the Board finds this evidence to be more probative of the Veteran's actual hearing thresholds than his or other people's subjective perception of his hearing loss. 

Based on the foregoing, the Board concludes that that the Veteran's bilateral hearing loss was not aggravated by service. 38 C.F.R. § 3.306(b) (aggravation may not be conceded where the disability underwent no increase in severity during service).  Accordingly, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for bilateral hearing loss. 

Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply.  Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted.


ORDER

Service connection for bilateral hearing loss is denied. 


REMAND

The Veteran is seeking a disability rating in excess of 10 percent for his service-connected cancer of the larynx.  He reported during an October 2007 VA examination that he had received regular periodic private treatment since he was first diagnosed in July 2005, but those records were not in the claims file.  On remand, the RO/AMC was to supposed request those records on the Veteran's behalf.  Following the December 2010 remand, the Veteran did complete an authorization form in which he identified the dates of private treatment as being from July 2005 through December 2010.  However, in its request to the private clinic, the AMC identified the dates as July 2010 through December 2010.  The earliest records received from the clinic are dated in August 2009 and note that this is four years after the Veteran's surgery to his larynx.  Thus, on remand, the RO/AMC should make another request using the correct treatment dates to ensure that all available treatment records are associated with the claims file. 

In addition, a review of the Virtual VA paperless claims processing system reveals additional VA outpatient treatment records pertinent to the claim for an increased rating for cancer of the larynx that have not yet been considered by the RO or AMC.  The most recent supplemental statement of the case dated in April 2012 indicates that VA treatment records dated through January 24, 2012, have been reviewed, while Virtual VA contains VA treatment records dated through February 2013, which show that the Veteran has recently complained of new and worsening symptoms relating to his throat.  As this new evidence has not been considered by the RO or AMC, and the Veteran has not submitted a waiver of RO consideration, a remand is required so that the RO may evaluate the new evidence and issue a supplemental statement of the case.  38 C.F.R. §§ 19.37, 20.1304 (2012).

Accordingly, the case is remanded for the following actions:

1.  The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his cancer of the larynx.  After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file.  A specific request should be made for the private medical records previously identified by the Veteran for the period from July 2005 to August 2009.  

The RO should also request any outstanding VA medical records pertinent to the Veteran's cancer of the larynx.

2.  After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraph.  Further development may include affording the Veteran a VA examination.

3.  When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence, to include any evidence contained in the Virtual VA file.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs