Citation Nr: 1315231 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 07-37 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, in which the RO denied the Veteran's claim for service connection for hearing loss. The Board denied the Veteran's appeal in a July 2010 decision. The Veteran appealed the Board's 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 memorandum decision, the Court vacated the Board's decision and remanded the claim for re-adjudication. The Board subsequently remanded the case in September 2012 for further notification, evidentiary development, and adjudication. The agency of original jurisdiction (AOJ) sent the Veteran the required notice via a November 2012 letter and scheduled the Veteran for a VA examination, which was conducted in January 2013. The Veteran was then provided a supplemental statement of the case (SSOC) in February 2013, in which the AOJ again denied the Veteran's service connection claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). (The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in December 2009. A transcript of the hearing has been associated with the Veteran's claims file.) FINDING OF FACT Hearing loss was not demonstrated in service or within one year of separation from service; current hearing loss is not attributable to military service. CONCLUSION OF LAW The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated during active military service; hearing loss may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through January 2003, September 2004, and November 2012 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the January 2003, September 2004, and November 2012 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned January 2003, September 2004, and November 2012 notice letters. The Board notes that although notice regarding an award of an effective date or rating criteria was not provided until after the initial adjudication of the Veteran's claim, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the Board does not now have such issues before it. Consequently, a remand for additional notification on these questions is not necessary. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran was given VA examination in November 2004 and January 2013; reports of those examinations are of record. In that connection, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are collectively adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and document that the examiners conducted full audiological examination of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). In addition, records of the Veteran's private and VA medical treatment have been associated with the file. The Veteran has further been given the opportunity to submit evidence; he and his representative have provided written argument in support of his claim, and the Veteran has testified before the undersigned Veterans Law Judge. Otherwise, neither the Veteran nor his representative has identified, and the record does not indicate, existing records pertinent to the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). If an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from active service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Here, the Veteran contends that his hearing loss began during his period of active service. First, the Board notes that VA audiology examinations conducted in November 2004 and January 2013 show a current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran served on active duty from February 1969 to February 1970. His DD Form 214 indicates that his military occupational specialty was as a light weapons infantryman. The Veteran has further submitted pictures of himself holding various weapons, including a shoulder-fired weapon, and has stated on multiple occasions that he was exposed to noise during service from firearms, tanks, and helicopters. Based on this evidence, the Board concedes the Veteran's exposure to acoustic trauma while on active duty. Relevant medical evidence consists of the Veteran's service treatment records as well as records of his post-service treatment at the VA Tennessee Valley Healthcare System and report of VA audiological examinations conducted in November 2004 and January 2013. Review of the Veteran's service treatment records reflects that in February 1968, at his entry onto active duty, audiological testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -5 (5) 5 (15) 10 (15) LEFT 0 (15) 0 (10) 5 (15) 10 (20) 25 (30) (NOTE: Prior to November 1967, and in some instances thereafter, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. In this case, the report of examination in February 1968 specifically noted that ASA standards were used.) At the time of his separation from active duty, the Veteran's January 1970 report of medical examination (measured in ISO units) revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 10 -- 15 LEFT 10 5 10 -- 15 The Veteran did not complain of and was not treated for any problems with his hearing while in service. At his January 1970 separation report of medical history, he responded "No" when asked if he experienced hearing loss at that time. Post-service medical records reflect that the Veteran has received ongoing treatment from the VA Tennessee Valley Healthcare System for complaints relating to his ears and hearing. The record reflects that he was first seen in July 2003 for complaints of decreased hearing and ringing in his ears. At an audiology appointment in October 2004, the Veteran complained of a history of bilateral hearing loss and tinnitus and mentioned that he had been exposed to noise in service. The Veteran was diagnosed with bilateral hearing loss and was provided hearing aids, although no indication was made as to the etiology of the disability. The record also contains report from a November 2004 VA audiological examination. That report reflects that the VA audiologist reviewed the Veteran's claims file and conducted audiometric testing, which revealed bilateral hearing loss under 38 C.F.R § 3.385. The examiner noted the Veteran's contention that he had been exposed to noise from gunfire and aircraft during service and had a "gradual onset" of hearing loss that began during his active service. The examiner diagnosed the Veteran with sensorineural hearing loss bilaterally. Acknowledging the Veteran's reported exposure to noise while in service, the examiner nevertheless concluded that it was not at least as likely as not that his current hearing loss resulted from the acoustic trauma he suffered in service. She based her opinion on the Veteran's normal audiogram results at the time of his separation from service, noting that although his current hearing loss was "possibly consistent with noise exposure," the fact that his hearing was normal at the time he left service made it "unlikely" that any in-service acoustic trauma was the cause of his current hearing loss. Pursuant to the Board's September 2012 remand, the Veteran was again provided VA examination in January 2013. At that time, the VA audiologist reviewed the Veteran's claims file and conducted audiometric testing, which again revealed bilateral sensorineural hearing loss for purposes of 38 C.F.R. § 3.385. The examiner acknowledged the Veteran's in-service noise exposure but opined that such acoustic trauma was not likely the cause of his current hearing loss. In so finding, the examiner noted that the Veteran's hearing had displayed no threshold shifts at any frequency at the time of his separation from service. The examiner pointed out that current medical knowledge, including the expertise of the Institute of Medicine, holds that there is "no scientific evidence to support delayed-onset hearing loss due to noise exposure." Regarding the Veteran's contentions that he first noticed hearing loss during service and has experienced symptoms since that time, the examiner stated that it was likely that the Veteran experienced temporary shifts in hearing that did not lead to any later permanent hearing loss. The examiner also pointed out that hearing at one frequency in the Veteran's left ear had actually improved from the time the Veteran entered service to the time he left. The Veteran testified before the undersigned Veterans Law Judge at a hearing in December 2009. At that hearing, the Veteran stated that he was exposed to acoustic trauma in service in the form of shoulder-fired weapons, as well as from gun and mortar fire and aircraft engines. After separation from service, the Veteran stated that he worked in factory maintenance, a job which he said did not often expose him to loud noise and for which he used hearing protection. He stated further that he was told that he had "moderate hearing loss" when he first began working following his separation from active duty, although records of any such examination are unavailable. The Veteran also testified that his wife first noticed that he was having trouble hearing when he returned from active duty. The Board further notes that the Veteran has stated in multiple submissions to VA that he suffered acoustic trauma while in service and that his current hearing loss was caused by this in-service noise exposure. His wife submitted a statement to that effect in December 2009, in which she stated that she and the Veteran both first noticed that he had trouble hearing in 1970, soon after his return from active duty. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss. The Board concedes that VA examinations confirm that the Veteran currently suffers from bilateral hearing loss. The Board concludes, however, that the greater weight of the evidence is against the claim. Here, even conceding the Veteran's exposure to noise while in service, the November 2004 and January 2013 VA examiners both found no link between any current disability and military service. In particular, the January 2013 VA examiner specifically considered the Veteran's contentions as to the continuity of symptomatology and still found there to be no evidence that his in-service noise exposure caused anything more than temporary threshold shifts in the Veteran's hearing acuity that resolved and did not lead to any later permanent hearing problems. Additionally, there is no medical evidence suggesting that sensorineural hearing loss became manifest to a compensable degree within a year of the Veteran's separation from qualifying military service. 38 C.F.R. §§ 3.307, 3.309. Noting that the Veteran's separation audiological examination documented normal hearing for VA purposes, the November 2004 and January 2013 VA audiologists both gave as their expert medical opinions that it was not at least as likely as not that any current hearing loss was related to the Veteran's military service. In so concluding, the examiners specifically considered the Veteran's contention that his in-service noise exposure led to his hearing loss. The January 2013 VA examiner further explained that there is no medical evidence in the current literature to suggest that exposure to acoustic trauma can cause delayed-onset hearing loss and opined that any threshold shift the Veteran experienced was temporary in nature and did not contribute to the later development of hearing loss. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran's service and his current bilateral hearing loss. In that connection, the Board notes that the medical opinion submitted by the January 2013 VA examiner acknowledged the Veteran's in-service noise exposure and his complaints of having first experienced hearing loss in service but nonetheless concluded that it was less likely than not that his current hearing loss was in fact due to in-service exposure to acoustic trauma. In so finding, the January 2013 VA examiner pointed to the current state of medical knowledge as to the development and causes of hearing loss in finding that there was no evidence to suggest that acoustic trauma leads to delayed-onset, as opposed to immediate, losses in hearing acuity. There is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service, including his exposure to acoustic trauma, and his current bilateral hearing loss. The Board further acknowledges that the Veteran's representative has contended that the Veteran's separation audiological examination showed a decrease in hearing acuity when compared with his entrance examination. However, as noted above, the Veteran's entrance audiogram was measured in ASA units; when converted to ISO units, the Veteran's entrance audiogram shows that his hearing thresholds were in fact worse at that time than at his separation from active duty. This point was reiterated by the January 2013 VA examiner. The Board notes that the Veteran has stated in multiple submissions to VA that he suffered acoustic trauma while in service and that his current hearing loss was caused by the in-service noise exposure. In this regard, the Board notes, first, that it does not question that the Veteran was exposed to acoustic trauma in service. Nor does the Board question that he presently suffers from bilateral hearing loss. However, in order for the Veteran's claim to be granted, the record must contain persuasive evidence linking the present disorder to service. Here, as discussed above and as detailed in the January 2013 VA examination report, the medical evidence does not lead to a conclusion of service connection for hearing loss. The Board has considered the Veteran's contention that his claimed hearing loss resulted from his time in service, and particularly to the acoustic trauma to which he was exposed while on active duty. The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion. The Board notes that although the Veteran is competent to report symptoms, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of this disability. As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter such as whether there exists a medical nexus between any current hearing loss and service. As for his statements that he has had hearing loss since service, the VA examining audiologist in January 2013 specifically noted that the Veteran's hearing acuity was normal at separation, which directly refutes the Veteran's statement regarding onset. In addition, at his separation report of medical history, the Veteran specifically denied experiencing any hearing loss. The January 2013 VA examiner further explained that any such decrease in hearing acuity that the Veteran may have noticed was temporary in nature and resolved without leading to permanent hearing loss. Implicit in the examiner's reference to the evidence and medical principles pertinent to her conclusions in this case is that the Veteran would not have noticed a loss of acuity at the time of separation because the testing definitively showed that it was normal. The Board therefore finds that the medical evidence, especially the audiogram conducted at separation and the Veteran's statement as recorded in the medical history report that he did not experience any hearing loss at that time, leads to the conclusion that the Veteran's statements about when he experienced loss of acuity are not credible. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim for service connection for hearing loss, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hearing loss is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs