Citation Nr: 1314575 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-11 727 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from March 1961 to March 1969. This appeal originally came before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA), Regional Office (RO), which, in pertinent part, denied entitlement to service connection for bilateral hearing loss. In pertinent part of a September 2012 decision, the Board awarded service connection for hearing loss in both ears. By way of a September 2012 decision, the RO implemented the portion of the September 2012 Board decision awarding service connection for left ear hearing loss. In January 2012, the RO contacted the Board to point out a possible mistake in awarding service connection for the right ear hearing loss. The matter has been returned to the Board for Post Decision Review. FINDINGS OF FACT 1. On September 13, 2012, the Board issued a decision awarding service connection for a right hearing loss disability. 2. In January 2013, the RO contacted the Board, indicating that a right hearing loss disability was not present at the time of a December 2012 VA examination, thus suggesting that a current disability subject to service connection did not exist. 3. The Veteran does not have a right ear hearing loss disability that can be related to his period of service. CONCLUSIONS OF LAW 1. The September 2012 decision of the Board awarding service connection for a right ear hearing loss is vacated. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). 2. The criteria for entitlement to service connection for a right ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1137, 5103A, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). In a September 2012 decision, the Board had granted entitlement to service connection for bilateral hearing loss, finding that it had stemmed from his exposure to loud noises during his period of service. This conclusion was based upon the fact that the Veteran had had significant noise exposure in service, and on two medical examinations, one from VA and one from a private audiologist. The VA examination found no relation between his hearing loss and service, while the private examiner found that it was least as likely as not that such a relationship existed. The Board gave more probative weight to the private, positive opinion, since it explained the significance of a shift in the Veteran's hearing threshold during service, while the VA examiner had not. The Board found that the preponderance of the evidence supported a finding of service connection for a bilateral hearing loss disability. In October 2012, the RO issued a rating action that promulgated the Board's decision as to service connection for a left ear hearing loss, assigning it a noncompensable evaluation based upon objective hearing testing. In January 2013, the RO contacted the Board, pointing out that service connection for a right ear hearing loss was not warranted because the objective hearing test results did not support a finding that such a loss disability existed, since it did not meet the decibel levels necessary to be considered a hearing loss disability for VA purposes. The Board agrees. Accordingly, the September 2012 Board decision addressing the issue of entitlement to service connection for a right ear hearing loss is vacated VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a letter sent to the Veteran in May 2009. This correspondence advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). It also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations in September 2009 and December 2012. See 38 C.F.R. § 3.159(c)(4). These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. These examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. LAWS AND REGULATIONS Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). 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)(2) (2012). 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. 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). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain chronic disorders, including arthritis, hypertension, and cardiovascular disease, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.384 (2012). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (2012). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). FACTUAL BACKGROUND AND ANALYSIS The Veteran has claimed that he has a right ear hearing loss that is directly attributable to his service. He stated that he was exposed to extensive aircraft noise while serving as an air policeman and flight security controller. He also referred to exposure to small arms fire, and rocket and mortar attacks while serving in Vietnam. While he did note that after service he had worked in manufacturing for approximately 29 years, building farm equipment, he was always required to wear hearing protection. Following this employment, he worked as a driver's license examiner. The Veteran's service treatment records indicated that an audiological examination was not conducted at his entrance onto active service; a whispered voice test was 15/15 bilaterally. A hearing conservation test was performed in June 1962. He had hearing thresholds of 5, 5, 5, 5, 5, and 10 decibels on the right at 250, 500, 1,000, 2,000, 3,000, 4,000, and 6,000 Hertz, respectively. At the time of this test, he was noted to be exposed to loud noises eight hours per day. During his February 1969 separation examination, another hearing test was performed. He displayed hearing thresholds of 10, 5, 5, 5, 10, and 20 decibels at 500, 1,000, 2,000, 3,000, 4,000, and 6,000 Hertz, respectively. In conjunction with the current claim, the Veteran was afforded a VA examination in September 2009. The examiner referred to the acoustic trauma noted above. Puretone audiometry testing showed hearing thresholds in the right ear of 20, 20, 25, 25, and 35 decibels at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, respectively. His speech recognition was 100 percent. The diagnosis was of normal to moderate hearing loss. The examiner stated that the Veteran's hearing loss was not related to military noise exposure. The examiner noted that the claims folder and the Veteran's service treatment records had been thoroughly reviewed. His service separation examination was completely normal. While his particular duties indicated that he had been exposed to loud noise during service, there was no indication in the service treatment records that this had had a permanent negative impact on his hearing. It was also commented that his post-service occupational noise exposure likely contributed to any current hearing loss. The Veteran was then examined by a private audiologist in October 2009. At the time of this examination, the Veteran stated that he had noted temporary shifts in his hearing during service while engaging in his duties. He reiterated that following service, he was required to wear hearing protection at his manufacturing job. Testing revealed mild to moderate high frequency hearing loss in the right ear, although his speech recognition was deemed to be excellent. The examiner then stated: It is my opinion that it is more likely than not the [the Veteran's] hearing loss....is related to his military noise exposure and it may have worsened as a civilian. It is documented in the histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram. This opinion is based on threshold shift between a military audiograms and separation exam, case history..... In December 2012, VA again examined the Veteran. The audiogram showed hearing thresholds in the right ear of 15, 15, 15, 15, and 30 decibels at 500, 1,000, 2,000, 3,000, and 4,000 Hertz, respectively. His speech recognition score in the right ear was 96 percent. The diagnosis was of high frequency hearing loss that caused no significant adverse effects on either occupation or daily activities. No etiological opinion was provided. After a careful review of the evidence of record, the Board finds that entitlement to service connection for a right ear hearing loss disability has not been established. There is no doubt that the Veteran was exposed to loud noises in service; therefore, acoustic trauma in service is conceded, thus establishing that an injury was incurred in service. While post-service occupational exposure may have contributed to the current degree of loss, there is no question that some hearing impairment in the right ear is currently present. It is likely, given the evidence of record and the fact that a left ear hearing loss disability and tinnitus have been related to his period of service, that any hearing impairment present in the right ear also had its onset in service. However, in order to award service connection for right ear hearing loss, a disability to the degree required by the applicable regulations must be present in that ear before it can be found that a hearing loss disability for VA purposes exists. As noted above, impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. A review of the hearing tests of record does not demonstrate any of the noted requirements for the finding of a right hearing loss disability for VA purposes. In other words, while the Veteran may have impaired hearing in the right ear, such hearing is not impaired to the level of severity required to constitute a current hearing loss disability. Accordingly, service connection cannot be granted for a right hearing loss at this time. Significantly, there is no evidence of record, other than the Veteran's statements, that any current right ear hearing impairment is present to the level required to warrant service connection. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). There is no indication in the record that the Veteran is competent to render a medical opinion as to whether he has a current right hearing loss disability for VA purposes. In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right hearing loss disability is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals