Citation Nr: 1314583 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 11-21 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran had active service from January 1952 to November 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied service connection for bilateral hearing loss. In this regard, the Board notes that while the Veteran's August 2010 statement expressly disagreed with a subsequent rating decision issued in July 2010, his notice of disagreement is timely with respect to the earlier April 2010 decision that denied the same benefit. See 38 C.F.R. § 20.302(a) (2012). In May 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In July 2012, the Board remanded the claim for further evidentiary development. After completion of the development, the Appeals Management Center (AMC) issued a supplemental statement of the case in February 2013 which continued the denial and the AMC provided a copy of the same to the Veteran and his local representative in March 2013. No response was received from the Veteran's representative. Accordingly, the Veteran's case was transferred to the Board. Notice of this latest action was provided to the Veteran and his local representative. See April 2013 Notice Letter of Transfer of Appellate Record. The Board will proceed with appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The medical opinion evidence of record shows that there is no causal connection between the Veteran's bilateral sensorineural hearing loss and in-service noise exposure. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, nor may bilateral sensorineural hearing loss be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's 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. 2012)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant 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, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The 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). Such 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). However, insufficiency in the timing or content of VCAA notice is harmless 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). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In an October 2009 VCAA letter sent to the Veteran prior to the appealed April 2010 rating decision, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA. The 2009 VCAA letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The Board finds that VA's duty to notify has been met. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file includes private and VA treatment records. Also, the Veteran was afforded another VA examination in December 2012 pursuant to a Board remand directive. The Board finds that the report on the examination and the February 2013 addendum are adequate as the examiner reviewed the claims file, considered the contentions of the Veteran, examined the Veteran, and provided a supporting rationale for the opinion rendered. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The Veteran was also provided an opportunity to set forth his contentions during the 2012 Board hearing. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing 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. 23 Vet. App. 488 (2010). In regard to the first duty, during the hearing, the Veterans Law Judge enumerated the issue on appeal. In regard to the second duty, the Veterans Law Judge advised the Veteran that the current record did not show that there was a relationship between the Veteran's current hearing loss and his service and that evidence was needed to support this relationship. Thus, the obligations under 38 C.F.R. 3.103(c)(2) were met. Also pursuant to a Board remand directive, records pertaining to current treatment the Veteran received at Scott Air Force Base were requested by the AMC. In September 2012, an official from Scott Air Base responded that no records on the Veteran were found. The Veteran received notice of the same in October 2012 and such notice was in accordance with 38 C.F.R. § 3.159(e) (2012). Lastly, the record reflects that the Veteran's service treatment records are unavailable. See November 2009 Response to Request for Information. The Veteran received notice of the same in January 2010 at which time he was provided NA Form 13075 for purposes of reconstructing his military record, which he submitted. No additional records, however, were forthcoming from the National Personnel Records Center. See March 2010 Response to Request for Information and March 2010 Formal Finding on the Unavailability of Service Treatment Records. The Veteran received notice of the same in March 2010 and such notice was in accordance with 38 C.F.R. § 3.159(e) (2012). Thereafter, the Veteran submitted a September 1953 Report of Medical Examination. The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. It does not contain any evidence not already in the paper claims folder or considered by the RO. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying relevant treatment he received for his disability, submitting medical evidence and lay statements detailing personal observations, and providing testimony at the Board hearing. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the July 2012 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Pertinent Laws and Regulations 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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). The United States Court of Appeals for the Federal Circuit has recently held that absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss (organic disease of the nervous system) becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For the purpose of applying the laws administered by VA, impaired hearing will be 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 (2012). III. Analysis - Bilateral Hearing Loss With the exception of a September 1953 examination that is of record, the Veteran's service treatment records are believed to have been destroyed in a fire in July 1973 at the National Personnel Records Center. Given the absence of these records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (providing that the Board has a heightened duty in a case where the service medical records are presumed destroyed). At the May 2012 Board hearing, while the Veteran's representative maintained that in addition to a 2010 VA examiner's failure to take into consideration that the Veteran's barracks were yards away from a flight line, the examiner also failed to consider that the Veteran worked in a warehouse with forklifts (Transcript (T.) 2), it appears from the Veteran's testimony and statements of record that the Veteran's primary allegation of exposure is noise from aircraft on the flight line. At the hearing, the Veteran affirmed that during his tour of duty in Japan, part of the time he drove forklifts. (T. 6-7) In response to a question from the representative on whether there was a moderate amount of noise in the warehouse, the Veteran responded: "Oh moderate, I was a forklift and stuff like that." (T. 7) In response to the representative's question on what was the most noise that the Veteran was exposed to while he was in Japan, the Veteran responded: "I guess forklift, I don't know." (T. 7) Thereafter, the Veteran eventually testified that he slept continuously for two years about 200 yards from the flight line. (T. 8-9, 11) He did not wear hearing protection in service. (T. 10) The Veteran confirmed that it was his main contention that he was exposed to the greatest noise based on sleeping near the flight line for two years while in service. (T. 11) The Veteran also testified that following service he worked for a boiler maker [Nooter Boiler]. (T. 10) The Veteran affirmed that the environment was "fairly loud it-running a hammer" and that he wore no hearing protection. (T. 10) Prior statements show that in the Veteran's September 2009 claim for compensation benefits, how the disability was related to service was explained as follows: "Veteran was exposed to very loud noise from aircraft during flight operations. Veteran worked close to flight line while stationed in Japan. Aircraft were constantly taking off and landing and flying over the location where Veteran worked." In an October 2009 statement, the Veteran's sister reported that the Veteran's hearing had worsened since he was in the military. The Veteran's sister maintained that the Veteran was exposed to "airplane noise a lot of the time" and that he was stationed in Japan where he received most of his hearing loss "due to closeness to the jet aircraft." In an October 2009 statement, the Veteran's wife described her personal observations of the Veteran's hearing difficulties. The Veteran's wife then concluded that "every year since 1956 it just[] got progressively worse." The Veteran's DD Form 214 indicates he was an Airman in the Air Force with his most significant duty assignment listed as with the 8th Supply Squadron. The related civilian occupation was listed as stock clerk. The service records are missing through no fault of the Veteran. The Veteran and his sister are competent to testify to factual matters of which they have first-hand knowledge and their respective statements are credible in this regard in the absence of evidence to the contrary. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The claimed noise exposure is also consistent with the place, type and circumstance of the Veteran's military service in the Air Force. See 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012). Thus, there is credible evidence that the Veteran was exposed to noise during his service. The Veteran is also competent to report on experiencing hearing difficulties throughout the years, and his spouse and sister are competent to report on their personal observations of the Veteran over the years; they are all credible in this regard in the absence of evidence to the contrary. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (finding that a lay person is competent to describe readily observable features or symptoms of illness); Caluza, 7 Vet. App. at 511. Thus, there is credible lay evidence that the Veteran experienced hearing difficulties that worsened over the years since his discharge from service. The mere fact of in-service noise exposure, however, is not enough; there must be chronic disability resulting from such noise exposure. Also, medical evidence is required to demonstrate the relationship between the present hearing disability and the continuity of symptoms of hearing problems the Veteran has experienced over the years as this relationship is not one that a lay person's observation is competent because it involves a complex medical question. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, relating current hearing loss and hearing difficulties over the years to a specific event in service, is a question of causation that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, medical evidence is required to address the nexus question presented in this case. In this regard, the medical evidence of record includes the September 1953 Report of Medical Examination that showed that the Veteran was administered a whispered voice test which measured hearing acuity of 15/15 in both ears. After service, records from Qualitone and Gallaher's House of Hearing Aids dated from January 1994 to November 2008 show that in January 1994, the Veteran reported the number of years he had been troubled by hearing problems was 10 to 12 years. It appears the Veteran reported the cause of his hearing problems as exposure to a lot of noise from work and the military. Thereafter, as observed by the Board in the July 2012 Remand, the Veteran was provided with a VA examination in June 2010. At such time, the examiner noted that the Veteran did not have significant noise exposure in the military as he worked as a supply clerk. He further observed that, as a civilian, the Veteran worked in a factory for 42 years and was a lifelong hunter. Following an audiological examination that revealed bilateral hearing loss for VA purposes, the examiner opined that it was not likely that the Veteran's bilateral sensorineural hearing loss was related to the military. In support of his conclusion, the examiner noted that the Veteran was a supply clerk in the military, a job that would not be inherently noisy. Additionally, he observed that nothing was found in the Veteran's file that suggested exposure to high noise levels and, at the time of the examination, the Veteran indicated that he was not around that much noise in the military. The examiner further noted that the Veteran had a long history of post-military noise exposure on the job and recreationally. The Board observed, however, that the examiner did not consider the Veteran's report of sleeping 200 yards from the flight line or the lay statements submitted by his spouse and sister describing his decrease in hearing since his military service. Moreover, while the examiner noted that nothing was found in the Veteran's file that suggested exposure to high noise levels during service, the Board observed that, with the exception of the September 1953 examination, there were no service records available. Accordingly, the Board found the June 2010 examination report was inadequate and determined that it was necessary to afford the Veteran another VA examination and nexus opinion in accordance with Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) and Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Veteran underwent another VA examination in December 2012. In response to the question of whether it is at least as likely as not that the Veteran's hearing loss is caused by or a result of an event in military service, the VA examiner responded in the negative. The VA examiner maintained that the Veteran was not exposed to excessive noise exposure on a continuous basis. The VA examiner noted that the Veteran worked as a shipping clerk and his only noise exposure was nearby aircraft coming/going. The VA examiner also noted that the Veteran worked in a warehouse. In the remarks section of the examination report, the VA examiner noted that the Veteran served in the Air Force from "1952 to 1954" as a shipping clerk in a warehouse and that he was exposed to aircraft coming/going. The VA examiner noted that as a civilian the Veteran worked as a boiler for a total of 42 years, that recreationally he used to go hunting every weekend, that he reported bilateral hearing loss, worse in the left ear, and that he had noticed hearing loss for at least 40 years. In a February 2013 addendum, the VA examiner indicated that the Veteran's claims file was made available and was reviewed. The VA examiner indicated that her opinion remained the same as presented in the original report dated in December 2012. Thus, on the question of whether the Veteran's current hearing loss and hearing difficulties over the years are related to noise exposure in service, the medical opinion evidence is against the claim. The VA examiner did not find that the type of in-service noise exposure experienced by the Veteran caused his hearing loss. Although the lay statements from the Veteran's spouse and sister were not specifically referenced, significantly, the VA examiner noted the Veteran's contention that he had noticed hearing loss for at least 40 years. Thus, the fact of the Veteran experiencing hearing difficulties over the years as corroborated by the Veteran's spouse and sister was clearly considered by the VA examiner in formulating her opinion. Also, the VA examiner acknowledged that the Veteran worked as a shipping clerk in a warehouse notwithstanding the VA examiner's notation that the Veteran's only noise exposure was from nearby aircraft coming and going. This suggests that once again the Veteran's allegation was noise exposure from aircraft on the flight line at the time of the examination. This is consistent with the other statements of record and testimony the Veteran provided at the hearing in which the focus was on the Veteran having been exposed to noise from a flight line. Thus, the Board finds that the VA examiner adequately considered whether any in-service noise exposure of significance caused the Veteran's hearing loss. Accordingly, as the medical opinion evidence shows that there is no causal connection between the Veteran's bilateral sensorineural hearing loss and in-service noise exposure, service connection for bilateral hearing loss is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs