Citation Nr: 1314355 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 07-16 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to June 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2006 and April 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2007, the Veteran requested a video conference Board hearing. Thereafter, the Veteran's representative submitted a letter in December 2008 indicating that the Veteran requested that her appeal continue without the need for a video conference hearing. The Board considers the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Veteran submitted a substantive appeal in May 2007 with respect to the issue of entitlement to service connection for migraine headaches. However, during the course of the appeal, the RO granted service connection for this claim in a September 2009 rating decision. As the RO granted in full the benefits on appeal, the service connection claim for migraine headaches is no longer in appellate status and no further consideration is required. In January 2011, the Board remanded the issues of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and for a bilateral hearing loss. The development for the issue of entitlement to service connection for a bilateral hearing loss has been completed; as such, the issue is decided herein. In a March 2012 rating decision, the RO granted entitlement to service connection for PTSD. As this is considered a full grant of the benefit on appeal, this issue is no longer before the Board. FINDING OF FACT A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in November 2005, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. In addition, the Veteran was sent a letter in March 2006 that met the requirements set out in Dingess. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in January 2011, in order to obtain an interpretation of an October 2005 audiological report and an opinion as to whether the Veteran's hearing loss was related to service, taking into account the interpretation of the report. In January 2011, after interpreting and reviewing this additional evidence, the examiner provided a further opinion that the Veteran's audiometric results did not have a pattern that indicated noise exposure. The Board finds that the VA opinion is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the report describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection - Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements 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). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b) only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). Sensorineural hearing loss, as a disease of the nervous system, may be a chronic disease under the provisions of 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). As such, if manifested to a compensable degree within one year of service, service connection will be presumed. If the disease is manifested in service and at any time thereafter, service connection will also be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence'). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that she has hearing loss as a result of exposure to jet engines while on active duty. Service treatment records do not show a hearing loss. At her entrance into active duty, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 - 25 LEFT 20 0 0 - 0 Her April 1985 Report of Medical History from separation shows that she reported a hearing loss. A right ear hearing loss was noted as having an unknown etiology and no treatment. The Veteran's separation examination is not in the claims file. VA medical records in August 2005 show that the Veteran reported that he was concerned about her "interval hearing" in her right ear. She was diagnosed with otitis media in the right ear. September 2005 VA medical records reflect that she reported that she had chronic ear infections, and at one time had lost the hearing in her right ear, but that it had since come back and she was doing fine. At the time, she reported that she was working at the United States Post Office (USPO) and that she had work-related noise exposure. Ear disease examination was within normal limits and the Veteran was recommended for an audiological examination. In October 2005, the Veteran reported a loss of hearing in her right ear after an ear infection. An October 2005 VA audiological consult shows that the Veteran had periodic noise exposure in the United States Air Force and working in the USPO. The results of the October 2005 audiological evaluation, which were in chart form, were interpreted as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 35 40 LEFT 25 25 25 45 50 The examiner found that the Veteran had a mixed hearing loss from 3000-4000 Hertz (mixed only at 4000 Hertz) in the right and moderate sensorineural hearing loss from 3000-4000 Hertz on the left. A June 2008 VA audiological examination shows that the examiner noted that the record contained audiologic assessments from October 2005, May 2007, and January 2007, and that all of these varied considerably, consistent with the possibility of an exaggeration in response. The Veteran reported that she could hear, but that she could not understand the words unless she turned and listened with her left ear. She reported military noise exposure as a result of having to drive next to the flight line, and that she was not required to wear ear protection. At the time of the examination, she was employed as a mail handler for the USPO within the facility. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 20 20 LEFT 20 25 20 5 5 Speech recognition scores were 100 percent on both sides. The examiner found that the Veteran tried to exaggerate hearing loss, but that after re-instruction, the results obtained were believed to be near the actual threshold. The examiner diagnosed a mild to moderate sensorineural hearing loss on the right from 6000-8000 Hertz and a mild sensorineural hearing loss on the left at 6000 Hertz. The examiner opined that it was less likely as not that the Veteran reports of service-related noise exposure contribute to the recorded hearing loss due to the fact that results in 1976 show borderline results similar to the testing at the time of the examination. In January 2011, the examiner who provided the June 2008 examination reviewed the claims file and the results of the October 2005 audiological evaluation. The examiner confirmed his opinion that the Veteran's hearing loss was less likely as not related to service, adding that the Veteran did not have a noise-related pattern of hearing loss. Based on the evidence of record, the Board finds that entitlement to service connection for a hearing loss is not warranted. The Veteran has contended that she has a hearing loss which began during service. 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, 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 (2012). The Board notes that the Veteran is competent to provide contentions regarding her hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994) (holding that competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses, that which is heard, felt, seen, smelled or tasted). However, as a lay person, she is not professionally qualified to determine whether she has hearing loss meeting the criteria under VA standards because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). While the results of the October 2005 VA audiological examination reflect a level of hearing loss that meets the criteria under 38 C.F.R. § 3.385, the VA examiner, who reviewed the claims file and examined the Veteran, found that the results of this examination were not reliable, as they were subject to exaggeration. This determination diminishes the probative value of this examination. The examiner noted that the Veteran was exaggerating her hearing loss at the June 2008 examination, but that, after reinstruction, accurate results were obtained. As such, this examination, which reflects a level of hearing loss that does not meet VA regulations, is of more probative value. Therefore, the evidence of record fails to show that the Veteran has a current hearing loss that would be subject to service connection. Brammer, McLain. Finally, the VA examiner provided additional rationale for finding that the Veteran did not have a current hearing loss related to service, noting that her current level of hearing was similar to her levels recorded in 1976, prior to her period of active duty. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for a hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for bilateral hearing loss is denied ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs