Citation Nr: 1314751	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  06-28 994	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for hearing loss disability in either ear.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from October 1979 to February 1986.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran appeared before a Veterans Law Judge and offered testimony at a hearing held at the RO in September 2009.  A transcript of that hearing is included in the record.  After that hearing but during the pendency of this claim, the Veterans Law Judge retired and the Veteran elected to exercise her right to seek an additional hearing before a different Veterans Law Judge.  In October 2012 she appeared before the undersigned Acting Veterans Law Judge and offered testimony.  A transcript of that hearing is also included in the record.

This matter was previously before the Board in January 2010, November 2011, June 2012, and January 2013, when it was remanded for additional development, to include providing adequate VA examinations and opinions.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

Hearing loss disability in either ear has not been shown by a preponderance of the evidence at any point during the appeals period.



CONCLUSION OF LAW

The criteria for service connection for hearing loss disability in either ear have not been met.  U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in March 2005 that provided information as to what evidence was required to substantiate the claim(s) and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  

The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal.  However, fully compliant notice was later issued in an April 2006 communication, and the claim was thereafter readjudicated in June 2007 and February 2013.  Accordingly, any timing deficiency has been appropriately cured and no further development is required with respect to the duty to notify.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006).

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, her statements in support of the claim are of record, including testimony provided at hearings before a Veterans Law Judge in September 2009 and before the undersigned Acting Veterans Law Judge in October 2012.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's January 2010, November 2011, and January 2013 remands, the Veteran was provided with VA examinations.  As the January 2013 remand found that the previous VA examinations had been inadequate, specific instructions were given and questions posted to the examiner.  VA provided the Veteran with a medical examination in December 2012 and an opinion in February 2013.  This examination complied with the specific instructions given and answered the specific questions posed and contained all information needed to rate the disability.  Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints.  Moreover, the VA examiner performed a thorough clinical evaluation, including performing additional testing, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  

The Board notes that the audiometric portion of this examination was conducted in December 2012 while the appeal was still pending before the Board, with the additional testing and addendum opinion being accomplished in February 2013.  As the purpose for both the December 2012 examination and the Board's January 2013 remand instruction was the same - to resolve apparent discrepancies in earlier testing results - and as the examination and additional test are adequate for rating purpose, the timing of the December 2012 examination does not preclude it from satisfying the January 2013 remand instructions.  Therefore, this examination with the addendum opinion is adequate for VA purposes.  Thus VA has complied with the January 2013 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At the Veteran's hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination.  Ultimately the claim was remanded for a new examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §1131. 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303.

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss as an organic disease of the nervous system, if it is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

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

Hearing loss disability is defined by regulation.  For the purpose of applying the laws administered by VA, impaired hearing will be considered 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.

In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought.  In the absence of proof of present disability, there can be no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).

Evidentiary Standards 

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

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.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that she experiences at any time because this requires only personal knowledge as it comes to her through her senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). 

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Facts 

The Veteran seeks service connection for hearing loss disability which she contends is due to her exposure to acoustic trauma while serving as a tactical aircraft maintenance specialist with the U.S. Air Force.  The Veteran further argues that she has experienced hearing problems since the beginning of her military service.  

Here, at the Veteran's October 1979 enlistment examination, the clinical evaluation of her ears was normal, and the Veteran denied a history of ear, nose or throat trouble.  On audiological examination, her pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
10
5
LEFT
20
15
10
15
10


The Veteran's service treatment records also include an undated Reference Audiogram and four Hearing Conservation Sheets dated in November 1980, August 1981, December 1983 and February 1985.  The undated Reference Audiogram indicates that the Veteran was first assigned to work in a noise-filled environment in April 1980.  The audiological evaluation revealed auditory thresholds as follows: 




HERTZ



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

The Veteran reported using hearing protection in the form of earplugs. 

In service, the Veteran participated in a Hearing Conservation training program with periodic audiometric tests to determine whether there were any changes in her hearing acuity in either ear.  In the November 1980 Hearing Conservation Data sheet, the Veteran indicated that she worked as an aircraft maintenance specialist with exposure to noise on the flight line.  The audiological evaluation showed results as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
10
5
LEFT
20
15
10
10
15

The Veteran underwent several additional audiological evaluations with findings documented in the remaining Hearing Conservation Data sheets showing slight variations in her right and left auditory thresholds as compared to the results in the Reference Audiogram. 

The Veteran underwent another hearing evaluation in March 1983 which found her ears to be clinically normal.  The audiological evaluation produced pure tone thresholds, in decibels, of:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
10
10
LEFT
20
20
10
15
25

At the September 2009 hearing, the Veteran testified that her job in the service involved working around aircraft engines with almost constant noise exposure and hearing protection that wasn't entirely effective.  She began to notice a decrease in her hearing acuity almost immediately after entering this work environment.  She had undergone a hearing test with a private examiner but had been told she didn't qualify for such a test through VA.

The Veteran's post service records reflect that she underwent an audiological evaluation with a private audiologist in August 2010, with pure tone thresholds in decibels as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
40
30
20
LEFT
15
15
15
5
5

The private audiogram results were provided in graph form, and the Board has provided the numeric equivalents above.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995).  Based on these audiometric findings, the audiologist diagnosed the Veteran with mild sensorineural hearing loss in the right ear and normal hearing in the left. 

The Veteran was afforded a VA examination in January 2011, at which time she reported a history of noise exposure while serving in the military and working with various types of aircraft and engines.  She also reported to have had exposure to gunfire noise during basic training.  After service, the Veteran worked in an office type environment and did not have any occupational or recreational noise exposure.  On the audiogram, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
25
15
10
LEFT
15
15
20
20
10

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. 

Based on her review of the medical records, as well as her discussion with, and evaluation of the Veteran, the VA audiologist diagnosed the Veteran with normal hearing in both ears and concluded that any hearing loss was not caused by or a result of military noise exposure, as the Veteran had normal hearing throughout her military career and currently presented with normal hearing. 

A subsequent VA audiological evaluation was conducted in January 2012, the findings of which showed pure tone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
20
10
5
LEFT
5
5
10
10
10

Speech audiometry revealed speech recognition ability of 100 percent in the right and left ear. 

Based on the audiometric findings, the VA audiologist diagnosed the Veteran with normal hearing in her right and left ear and determined that any noted hearing loss was less likely due to an event in service.  This conclusion was based on the Veteran's normal audiometric findings at both the current and the January 2011 VA examination.  She also noted that the Veteran had normal hearing at discharge with no shift in hearing noted in either ear during military service.  In addition, the VA audiologist reviewed the August 2010 audiological findings, which she described as showing "a mild to moderate FLAT hearing loss - [with] no noise induced notch. . . ."  As no further explanation was provided to explain the significance of a flat hearing loss as opposed to a noise-induced hearing loss, the Board remanded the claim for an additional examination and opinion to address the deficiencies in the January 2012 examination. 

At the October 2012 hearing, the Veteran testified that in service she always wore hearing protection.  However, on her first period of leave she noticed that she was having trouble hearing conversations in quieter environments and had to ask people to repeat themselves.  At the time of the August 2010 private audiometric evaluation, she had spoken with the audiologist, complaining of problems in her left ear, but he told her she had significant hearing loss in her right ear.  

The Veteran was provided with an additional VA examination in December 2012.  Audiometric testing showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
15
10
LEFT
10
15
15
15
10

Speech discrimination testing showed 96 percent in the right ear and 100 percent in the left ear.  The examining audiologist noted the results as demonstrating normal hearing in both ears.  

The examiner offered the opinion that the Veteran did not have a hearing loss disability which was the result of her military service, based on a lack of evidence of decreased hearing acuity between her service entrance examination and her service separation examination.  The examiner noted that any hearing loss shown subsequent to her separation in 1986 would not be the result of noise exposure during service.  In addition, the examiner noted that the Veteran's hearing was clinically normal on testing during the January 2011, January 2012, and December 2012 VA examinations and that all of these examinations reflected consistent results.  In contrast, the private audiometric testing done in August 2010, showed vastly different results, and it was the examiner's opinion that the right ear hearing loss shown on that test was due to an anomaly such as equipment malfunction or patient malingering.

In February 2013, the VA examiner provided an addendum opinion noting that the Veteran had been referred for Auditory Brainstem Response testing in an attempt to understand the source of the inconsistencies between the August 2010 private test results and the VA examination results.  Auditory Steady State Response testing was also performed.  Results of both tests showed normal results in both ears, with standard responses given by the Veteran within normal time limits.  The audiologist concluded that the Veteran had clinically normal hearing bilaterally with no indication of any retrocochlear involvement.



Analysis

After examining the Veteran's service treatment records, the Board finds that a hearing loss disability in either ear was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. 

In addition, a hearing loss disability in either ear was not manifested to a compensable degree within the first year after service separation, and service connection for hearing loss as an organic disability of the nervous system is not established under 38 C.F.R. §§ 3.307 and 3.309.

The Veteran has described a sense of decreased hearing acuity or difficulty hearing since her separation from service.  Although a lay person, she is considered competent to provide evidence regarding symptoms she has experienced.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, because of the specific requirements regarding hearing loss disability for VA purposes, the Veteran's own subjective symptoms are not enough to demonstrate the existence of hearing loss.

For VA purposes, hearing loss disability is defined by regulation, which imposes strict requirements with regard to measurable results on audiometric testing.  See 38 C.F.R. § 3.385.  In this instance, those requirements have not been met.  While the Board accepts that the Veteran's hearing acuity has been perceptibly decreased in her own experience, her audiometric test results do not meet the levels required by law for service connection.  In short, because her audiometric test results are insufficient to meet the requirements of 38 C.F.R. § 3.385, the Veteran does not have a current disability for VA purposes and the claim of service connection must fail.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

In addition, based on the preponderance of the evidence, the Board finds that hearing loss disability for VA purposes, whether bilateral or in the right ear alone, has not been conclusively demonstrated at any time during the appeals period, despite the results of the private audiometric test in August 2010.  The Board acknowledges that the August 2010 private audiometric examination appeared to demonstrate a hearing loss in the right ear which satisfies the requirements of 38 C.F.R. § 3.385.  However, the Board has also considered that the other audiometric examinations of the Veteran, both before and after the August 2010 examination, are consistent and reflect normal hearing.  Specifically, the August 2010 evaluation showed pure tone values of 45 and 40 decibels at 1000 and 2000 Hertz, respectively, compared with other testing showing at most 15 and 25 decibels.  

Moreover, the VA examiner arranged for extensive testing in an attempt to determine the cause for these discrepancies and found that results of Auditory Brainstem Response and Auditory Steady State Response testing were consistent with the findings of the December 2012 audiometric examination.  In consequence, the examiner concluded that, since all other tests demonstrated normal hearing with no other explanation for the anomaly, the August 2010 results indicating right ear hearing loss were due to a malfunction in the equipment or an inappropriate response by the Veteran.  Inasmuch as the preponderance of the evidence indicates that the Veteran does not have and has not had a hearing loss disability for VA purposes during the appeals period, the claim of service connection must be denied.

Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection in this case, the doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for hearing loss disability in either ear is denied.



____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs