Citation Nr: 1315071	
Decision Date: 05/07/13    Archive Date: 05/15/13

DOCKET NO.  08-39 813	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from February 1951 to April 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied, in pertinent part, the Veteran's claim of service connection for bilateral hearing loss.  A Travel Board hearing was held at the RO in October 2011 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.

In April and September 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed the RO/AMC to obtain updated VA treatment records (which were obtained and associated with the Veteran's Virtual VA paperless claims file in October 2012) and to schedule the Veteran for updated VA examination (which occurred in May 2012).  An addendum to the Veteran's May 2012 VA examination was obtained and associated with the claims file in July 2012.  The Veteran had another VA examination in November 2012.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The issues of entitlement to service connection for a heart disability and to a disability rating greater than 10 percent for depressive disorder have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Veteran filed both of these claims in October 2011 correspondence.  These claims previously were referred to the AOJ (in this case, the RO) in the Board's September 2012 remand.  To date, however, the RO has not adjudicated these claims.  Therefore, the Board does not have jurisdiction over these claims and they are referred again to the AOJ for appropriate action.  

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).


FINDINGS OF FACT

1.  The record evidence indicates that the Veteran served in combat in the Republic of Korea during the Korean Conflict and was awarded a Purple Heart for wounds suffered in combat; thus, his in-service exposure to significant acoustic trauma is presumed.

2.  The record evidence demonstrates that the Veteran does not experience bilateral sensorineural hearing loss for VA disability compensation purposes.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by active service nor may sensorineural hearing loss be presumed to have been incurred during service.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

In a letter issued in September 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claim.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

As will be explained below in greater detail, the evidence does not support granting service connection for bilateral hearing loss.  Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Additional notice of the five elements of a service-connection claim was provided in the September 2007 VCAA notice letter, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, the September 2007 VCAA notice letter was issued prior to the currently appealed rating decision issued in January 2008; thus, this notice was timely.  Because the Veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot.  See Dingess, 19 Vet. App. at 473.  And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328.

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board.  It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's Virtual VA claims file has been reviewed.  The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits.  The VLJ specifically noted the issue as including entitlement to service connection for bilateral hearing loss.  The Veteran was assisted at the hearing by an accredited representative from his then-service representative North Carolina Division of Veterans Affairs.  The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  The representative specifically asked the Veteran about continuity of the Veteran's bilateral hearing loss symptomatology since active service. 

Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits.  The Veteran's representative and the VLJ asked questions to draw out the evidence which related the Veteran's bilateral hearing loss to active service, the only element of the claim in question.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.  

In October 2007, the National Personnel Records Center in St. Louis, Missouri (NPRC), notified VA that the Veteran's service treatment records had been damaged in the July 1973 fire at NPRC and were moldy or too brittle to send to VA.  The NPRC instead provided VA with copies of all of the Veteran's available service treatment records.  

In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  VA must provide an explanation to the Veteran regarding VA's inability to obtain his or her service treatment records.  Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.  Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000).  Given the foregoing, the Board concludes that all of the Veteran's available service treatment records have been obtained and further efforts to attempt to obtain them would be futile. 

As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the Veteran shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim.  An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the Veteran has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the Veteran's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran also has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

Service Connection for Bilateral Hearing Loss

The Veteran contends that he incurred bilateral hearing loss during active service.  He specifically contends that his current bilateral hearing loss began during active service, including as a result of significant in-service acoustic trauma while in combat in the Republic of Korea during the Korean Conflict.


Law and Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease 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).  Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

Establishing service connection generally requires (1) medical evidence of a presently existing 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 claim in-service disease or injury and the present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999).

In the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation.  Every reasonable doubt shall be resolved in favor of the Veteran.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Satisfactory lay or other evidence under section 1154(b) has been defined as "credible evidence."  See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996).  These provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, for both of which competent evidence is generally required.  In other words, these provisions do not presumptively establish service connection for a combat Veteran; rather, they relax the evidentiary requirements for noting what happened in service.  See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996).

Clinically, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).   For compensation purposes, however, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  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.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a).  Because sensorineural hearing loss (as an organic disease of the nervous system) is considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim.

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

Factual Background

The Veteran's service treatment records show that, at his enlistment physical examination in February 1951, the Veteran's hearing was "15/15" (or within normal limits) in both ears.  Clinical evaluation of his ears was normal.  The Veteran denied all relevant pre-service medical history.  These results were unchanged on a periodic physical examination in March 1953.  At his separation physical examination in April 1955, the Veteran's hearing was "15/15" (or within normal limits) in both ears.  Clinical evaluation of his ears was normal.

A review of the Veteran's DD Form 214 shows that he was wounded in action (WIA) in Korea and was awarded the Purple Heart Medal, Korean Service Medal w/3 Stars, the Korean Presidential Unit Citation, and the United Nations Service Medal.  The DD Form 214 also shows that the Veteran served as a Radio Message Operator during active service.  A letter dated in February 1955 and included in the Veteran's claims file confirms that he was awarded the Purple Heart "for a wound received in action against the enemy on 9 October 1951 in Korea while a member of the U.S. Marine Corps."

In a September 2007 letter, A.H., M.D., stated that the Veteran had "an abnormal audiogram with a mid and high frequency sensorineural hearing loss.  I believe it is more likely than not related to military service noise exposure."

On VA ear disease examination in January 2008, the Veteran complained of bilateral hearing loss since "an enemy mortar shell exploded close to him in October of 1951."  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran "was in combat in Korea for twelve months.  He was exposed to a great deal of incoming mortar shells exploding plus machine gun and rifle fire."  The Veteran stated that he had "some hearing loss" at his separation from active service "and his hearing loss has gradually increased in severity over the years."  He denied any post-service treatment for bilateral hearing loss and did not wear hearing aids.  He also denied any post-service recreational noise exposure or trauma to his ears.  He had worked in retail sales "without significant problems" and continued to do so.  He also was able to perform his activities of daily living.  Physical examination showed normal external ears and ear canals, intact bilateral tympanic membranes that were "free of scarring," normal tympanums and mastoids, no active ear disease, no infections in the middle or inner ears, no peripheral vestibular disorder, and no Meniere's.  No diagnostic or clinical testing was performed.  The VA examiner opined that the Veteran's bilateral hearing loss was at least as likely as not due to in-service noise exposure.  He provided the following rationale for this opinion: "The Veteran had much combat noise exposure in military service."  The diagnoses included bilateral hearing loss.

On VA audiology examination in January 2008, the Veteran's complaints included hearing loss.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  "This Veteran served as a rifleman and radio operator with combat service in Korea."  The VA examiner noted that the Veteran's service treatment records "indicate hearing levels were judged to be within normal limits at the time of military separation."  The Veteran denied any significant post-service occupational or recreational noise exposure.  He reported the situation of greatest difficulty for him was "[a]nnoying tinnitus in quiet situations."  The Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
25
25
30
LEFT
30
25
20
30
25

Speech audiometry revealed speech recognition ability of 70 percent in the right ear and of 84 percent in the left ear.  The VA examiner stated, however, that the Veteran's speech discrimination scores "are far below that anticipated for this level of hearing.  Speech results are considered invalid and should not be used for rating purposes."  The diagnosis was hearing loss "not disabling (per 38 CFR 3.385)."  

On VA examination in May 2012, the Veteran complained of hearing loss.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The VA examiner stated, "Speech scores show poor reliability with demonstrated communicative skills and thus are not reported and should not be used for rating purposes."  No audiometric testing results were reported.  This examiner also stated, "Responses to speech and pure-tones are inconsistent with speech reception thresholds (which are normal at both ears) and demonstrated communicative skills.  Results are considered unreliable and not reported."  The VA examiner stated further that he could not provide a medical opinion "without collection and interpretation of valid and reliable test results."

In a July 2012 addendum to the May 2012 VA examination report, the VA examiner stated that he had reviewed the Veteran's claims file.  He noted the Veteran's normal hearing levels during active service.  He also stated that he could not "locate any evidence of chronicity or continuity of care regarding hearing loss...during at least one-half century following military separation."  He stated further that, following a careful review of the available documentation, he could not "locate any information which would support the conclusion that hearing loss" is related to the Veteran's active service.  He opined that it was less likely than not that the Veteran's hearing loss was caused by or the result of in-service noise exposure.

On VA audiology examination in November 2012, no relevant complaints were noted.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  He noted that the May 2012 audiometric testing results were considered unreliable and had not been reported.  The Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



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

The VA examiner stated:

Speech recognition testing was considered unreliable on this exam.  Therefore, the use of speech discrimination scores is not appropriate for this Veteran.  Pure tone levels are considered sufficiently reliable and adequate for rating purposes.  Pure tone levels alone are appropriate for rating purposes.

Acoustic immitance testing was "consistent with normal middle ear status."  No hearing loss was present.  The VA examiner also stated, " Audiologic results revealed bilateral hearing loss not disabling (per 38 CFR 3.385)."  The diagnosis was hearing loss not disabling (per 38 C.F.R. § 3.385).

Analysis

The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss.  The Veteran has contended that he incurred bilateral hearing loss during active service, including as a result of exposure to significant acoustic trauma from enemy mortars and machine gun and rifle fire while in combat in Korea.  The Veteran's assertions concerning in-service exposure to significant acoustic trauma during combat are supported by a review of his service personnel records (in this case, his DD Form 214 and a letter dated in February 1955 confirming his award of the Purple Heart Medal for a combat wound incurred in Korea).  These records demonstrate that the Veteran served in combat in the Republic of Korea during the Korean Conflict.  Thus, the Veteran's in-service exposure to significant acoustic trauma during active combat service in Korea is presumed.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

Although the Veteran's in-service exposure to significant acoustic trauma is presumed, the record evidence does not support his assertions regarding in-service incurrence or continuity of symptomatology since service for bilateral hearing loss.  As noted, sensorineural hearing loss is considered a "chronic disease" to which continuity of symptomatology is a valid theory of establishing service connection.  See Walker, 708 F.3d at 1331; see also 38 C.F.R. § 3.309(a).  The Veteran's service treatment records show no complaints of or treatment for bilateral hearing loss at any time during active service.  Nor do any of the pure tone thresholds obtained at the Veteran's enlistment physical examination in February 1951, his periodic physical examination in March 1953, or at his separation physical examination in April 1954 demonstrate the presence of impaired hearing for VA disability compensation purposes at any time during active service.  38 C.F.R. § 3.385.  There further is no indication that the Veteran complained of or was diagnosed as having bilateral sensorineural hearing loss during service or within the first post-service year (i.e., by April 1956) such that service connection for bilateral sensorineural hearing loss is warranted on a presumptive basis as a chronic disease.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

The post-service evidence also does not support granting service connection for bilateral hearing loss.  The Veteran has asserted that he experienced continuous disability due to bilateral hearing loss since his service separation in April 1955.  The evidence does not support the Veteran's assertions of continuity of symptomatology for bilateral hearing loss since his service separation, however.  The evidence shows instead that the Veteran does not experience bilateral hearing loss disability for VA purposes as noted by multiple VA examiners who examined the Veteran during the pendency of this appeal.  See 38 C.F.R. § 3.385.  

The Board acknowledges that, in a September 2007 letter, Dr. A. H. opined that the Veteran's sensorineural hearing loss was related to his in-service noise exposure.  The basis for this opinion is not clear.  Dr. A. H. provided neither a rationale nor any audiometric testing results to support his opinion.  It also is not clear whether the sensorineural hearing loss noted on the "abnormal audiogram" mentioned in Dr. A. H.'s letter would be considered a disability for VA purposes.  Id.  Because it appears that Dr. A. H.'s September 2007 opinion is not based on "sufficient facts or data," the Board finds that it is less than probative on the issue of whether the Veteran's bilateral hearing loss is related to active service.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board also acknowledges that, following VA ear disease examination in January 2008, the VA examiner opined that the Veteran's bilateral hearing loss was at least as likely as not due to in-service noise exposure.  This examiner noted that the Veteran reported experiencing "some hearing loss" at his separation physical examination; however, this assertion is not supported by a review of the Veteran's April 1954 separation physical examination report which shows that his hearing was "15/15" (or within normal limits) bilaterally.  The Board acknowledges further that the absence of contemporaneous service treatment records showing treatment for a claimed disability is not a bar to granting service connection.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim).  Although the Veteran's in-service exposure to significant acoustic trauma while in combat in Korea has been conceded, the Board finds it significant that he did not have bilateral hearing loss for VA purposes on audiometric testing conducted on the same date as his VA ear disease examination in January 2008.  See 38 C.F.R. § 3.385.  The Board also finds that the basis for the diagnosis of bilateral hearing loss following VA ear disease examination in January 2008 is not clear from a review of the record.  Because it appears that the diagnosis of bilateral hearing loss following VA ear disease examination in January 2008 was not based on "sufficient facts or data," and because this diagnosis is contradicted by audiometric testing results showing no bilateral hearing loss for VA purposes on the same date, the Board concludes that the January 2008 VA ear disease examination report is less than probative on the issue of whether the Veteran's bilateral hearing loss is related to active service.  See Nieves-Rodriguez, 22 Vet. App. at 295.  

The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.  LeShore v. Brown, 8 Vet. App. 406, 409 (1995).  The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999).  Thus, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  To the extent that the VA examiner diagnosed the Veteran as having bilateral hearing loss following VA ear disease examination in January 2008 based on an inaccurately reported in-service history of experiencing hearing loss at service separation, the Board finds that this opinion is not probative on the issue of whether the Veteran's bilateral hearing loss is related to active service.

By contrast, both of the VA examiners who saw the Veteran for VA audiology examinations in January 2008 and in November 2012 found that, although the Veteran had bilateral hearing loss, it was not considered a disability for VA purposes.  See 38 C.F.R. § 3.385.  The November 2012 VA examiner specifically found that no hearing loss was present in either of the Veteran's ears for VA purposes.  A third VA examiner concluded in July 2012 that, following a detailed review of the claims file, there was no support for finding an etiological link between the Veteran's bilateral hearing loss and active service or any incident of service, to include his in-service exposure to significant acoustic trauma (which has been conceded).

The Board observes in this regard that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection is not warranted in the absence of proof of current disability.  The Board has considered whether the Veteran experienced bilateral hearing loss disability for VA purposes at any time during the pendency of this appeal.  See 38 C.F.R. § 3.385.  Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  In this case, there is no evidence of a hearing loss disability for VA compensation purposes at any time during the pendency of this appeal.  Id.  

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  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, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

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 he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (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 absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan, 451 F.3d at 1337; Barr, 21 Vet. App. at 303.  In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his symptoms of bilateral hearing loss have been continuous since service.  He asserts that he continued to experience symptoms relating to bilateral hearing loss (difficulty hearing) after he was discharged from service.  In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of bilateral hearing loss after service separation.  Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible.  

The Board finds that the Veteran's more recently-reported history of continued symptoms of bilateral hearing loss since active service is inconsistent with the other lay and medical evidence of record.  Indeed, while he now asserts that this disorder began in service, he specifically denied all relevant in-service history or complaints of symptoms of bilateral hearing loss on an in-service periodic physical examination in March 1953.  Although it appears that a medical history was not taken at service separation in April 1955, the service separation examination report reflects that the Veteran was examined and his hearing was found to be within normal limits bilaterally.  His in-service history of symptoms in March 1953, and the clinical evaluation showing normal hearing bilaterally at service separation in April 1955, is contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  

The post-service medical evidence does not reflect complaints or treatment related to bilateral hearing loss for several decades following active service.  The Board emphasizes the multi-year gap between discharge from active service (April 1955) and initial reported symptoms related to bilateral hearing loss in approximately September 2007 (a 52-year gap).  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability).  

When the Veteran sought to establish care with VA after service in May 2001, he did not report the onset of bilateral hearing loss during or soon after service or even indicate that the symptoms were of longstanding duration.  He also denied any prior "illness, operations or hospitalizations."  When seen on VA ear disease examination in January 2008, the Veteran specifically denied receiving any "current or past treatment for an ear condition."  Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes.  Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  

He did not claim that symptoms of his disorder began in (or soon after) service until he filed his current VA disability compensation claim.  Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes.  See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). 

The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and his previous statements made for treatment purposes.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs