Citation Nr: 1315491 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-06 814A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and G.V. ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The case was remanded for further development in March 2011. That development was completed, and the case was returned for appellate review. The Board then sought an expert medical opinion in the case. The Board notes that the Veteran's appeal also originally included the issue of entitlement to service connection for tinnitus. However, during the pendency of the appeal, the RO granted that benefit in a September 2011 rating decision. Accordingly, the issue is no longer on appeal, and no further consideration is necessary. A hearing was held on January 11, 2011, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the decision in this case. A transcript of the hearing testimony is in the claims file. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Bilateral hearing loss did not manifest in service or sensorineural hearing loss within one year thereafter, and the Veteran has not been shown to currently have bilateral hearing loss that is causally or etiologically related to his military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, nor may bilateral sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in December 2007 prior to the initial decision on the claim in May 2008. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection and of the division of responsibilities in obtaining such evidence. The December 2007 letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. He has not identified any other outstanding records that are pertinent to his claim for service connection for bilateral hearing loss. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board in January 2011. During the hearing, the undersigned Veterans Law Judge (VLJ) identified the issue on appeal, and the Veteran's representative asked the Veteran questions about his noise exposure both in service and afterwards and how his hearing loss developed. Such questions and testimony demonstrate an understanding of what evidence was required to substantiate the claim for service connection. Thus, the appellant had actual knowledge of the information needed to substantiate his claim. See e.g., Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO); see also Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a notice error). Furthermore, the Veteran was afforded a VA audiology examination in May 2008 in connection with his bilateral hearing loss claim. 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). The Board found the May 2008 VA examiner's opinion to be inadequate and subsequently requested a medical expert opinion for clarification in January 2013. Contrary to the contentions of the Veteran's representative, the Board finds that the January 2013 medical expert opinion regarding hearing loss is adequate. The opinion is predicated on a full reading of the Veteran's claims file, and the medical expert (Chief of Audiology and Speech Pathology Services) considered all of the pertinent evidence of record. She provided an adequate rationale for her opinion stated, relying on and citing to the records reviewed. Indeed, she specifically referenced various documents in the file, including the Veteran's service treatment records, lay statements, and post-service medical records, and noted their contents, including the audiogram results of record. She also reiterated the exact directives of the opinion request in her introduction and stated her credentials. In addition, the expert noted that the Veteran's hearing was normal during his military service, considered available medical literature, and specifically indicated that there is no research showing that exposure to loud noise, acoustic trauma causes hearing thresholds to worsen more than two years after exposure. Such a statement answers the question of how hearing loss that results from noise exposure generally develops or presents. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of hearing loss has been met. 38 C.F.R. § 3.159(c)(4). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the hearing loss 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). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any 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). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. His service treatment records do not document any complaints, treatment, or diagnosis of such a disorder. In fact, a clinical evaluation found the Veteran's ears and drums to be normal at the time of his separation examination in September 1967, and he specifically denied having a medical history of ear trouble or hearing loss. An audiogram at that time also revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) -- -5 (0) LEFT -10 (5) -5 (5) 10 (20) -- -5 (0) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures 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.) Thus, upon separation examination in September 1967, the Veteran did not meet the criteria for hearing loss pursuant to VA standards. In addition, the Veteran had a hearing loss profile of "H1." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). Moreover, the Veteran did not seek treatment immediately following his separation, and there is no evidence of any hearing loss within one year of his military service. The earliest that the records document the Veteran's hearing loss post-service pursuant to VA standards is at the May 2008 VA examination during which he was diagnosed with bilateral sensorineural hearing loss. Therefore, the Board finds that bilateral hearing loss did not manifest in service or within one year thereafter. The Board notes that the Veteran testified at his January 2011 hearing that he has had hearing loss since service. The Board recognizes that the Veteran is competent to report his experience and symptoms in service. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a Veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has had difficulty hearing since his military service. However, his allegations are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service, and upon objective testing, his hearing was documented as being within normal limits at the time of his separation from service. In fact, he specifically denied having a medical history of hearing loss and ear trouble at that time. As such, there is actually affirmative evidence showing that he did not have hearing loss at the time of his separation from service, and his subsequent statements made in connection with his current claim are contradictory to the medical history he reported in service. Accordingly, the Board finds the Veteran's history regarding the onset of his hearing loss to be not credible. Similarly, the fellow serviceman who submitted a statement in support of the Veteran's claim in August 2010 is competent to discuss his personal experience with military noise exposure and any personal observations that he made of the Veteran during service. However, the serviceman's statements do not discuss any personal observations of the Veteran. Rather, his statements go towards his personal experience with dangerous artillery noise exposure, which is a point already conceded by the Board. Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss did not manifest in service or within one year thereafter. Nor has there been continuity of symptomatology since his period of service. Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has argued that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his bilateral hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding military noise exposure. See 38 C.F.R. § 3.159(a)(2). In addition, the post-service medical records show that the Veteran has current bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his acoustic trauma in service. The Veteran submitted a visually depicted audiogram and accompanying report from a January 2009 diagnostic hearing evaluation conducted by a private audiologist. The audiologist considered the Veteran's military and post-service noise exposure, performed relevant tests for hearing acuity, and confirmed a diagnosis of bilateral hearing loss. However, the audiologist did not render an etiological or nexus opinion relating the Veteran's current hearing loss to any aspect of service. Instead, she merely reiterated the Veteran's reported history, which the Board has found to be not credible. Therefore, the Board finds this evidence to be of limited probative value. The Veteran was also afforded a VA examination in May 2008 during which the examiner reviewed the claims file and medical history and performed a physical examination. She noted that the Veteran's service treatment records, particularly upon separation, showed normal hearing acuity bilaterally. She also acknowledged the Veteran's military noise exposure to artillery in Vietnam, but noted that he had post-service noise exposure to machinery noise, which required the use of hearing protection by the Veteran's employer. She stated that the Veteran has significant noise exposure after service that most likely caused the current hearing loss. The same VA examiner clarified in an April 2011 medical opinion that the Veteran's hearing loss is not a result of his noise exposure during his military service. The examiner noted the Veteran's combat service and conceded military noise exposure; however, she also commented that hearing loss is not a subjective report that cannot be measured. She noted that his auditory thresholds at entrance and separation were within normal levels, as there was not a significant threshold decrease beyond normal progression and test variability during military service. Thus, the examiner ruled out hearing loss resulting from acoustic trauma. The Board notes that the VA examiner appears to have based her opinions on the fact that the Veteran did not have hearing loss in service. In fact, she commented that she can only address the evidence in the service treatment records and stated that it was not within the scope of her practice to speculate on the etiology of the current hearing loss. However, as previously noted, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board notes that the examiner could have provided more substantial statements in support of her medical opinion, to include her opinion on how hearing loss typically develops or presents over time, particularly in the case of this Veteran. Therefore, the Board also finds that May 2008 VA examiner's opinion to be of limited probative value. Thus, the Board found that an additional medical opinion was necessary and requested an addition medical opinion from a VA medical expert in audiology in January 2013, which the Board finds to have the most probative value. Nevertheless, such evidence does not link the Veteran's current bilateral hearing loss to service. In this regard, the VA medical expert thoroughly reviewed the claims file, to include the in-service and separation audiograms, post-service medical records, and lay statements of record. Based on her review of the evidence, she found that it is unlikely that the Veteran's current bilateral hearing loss is causally or etiologically related to the Veteran's military service, to include noise exposure in service. In so doing, she noted that research does not show that exposure to loud noises/acoustic trauma causes hearing thresholds to worsen more than two years or so after exposure to the noise. In other words, she essentially opined that there was no scientific basis for concluding that delayed-onset hearing loss occurs two or more years after noise exposure. She elaborated that the Veteran's 2008 audiogram (indicating a hearing loss disability) is more than 40 years after separation from service, and there are no other audiograms of record measuring hearing acuity for the time period from 1967 to 2008. Furthermore, she noted that the Veteran's measured hearing acuity at the time of induction into service (found to be within normal limits) was in fact worse than the audiogram results indicated on the September 1967 separation examination. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). After weighing the medical evidence, the Board finds the January 2013 VA medical expert's opinion to be most probative. She reviewed all of the evidence and provided an adequate rationale as explained above. 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). Based on the foregoing, the Board attaches the greatest probative weight to the opinion of the VA medical expert who had the benefit and review of all pertinent medical records and who provided a rationale supported by the record. Moreover, the Board notes that there are no opinions of record that support the Veteran's claim other than his own statements, which have been to be not credible as they pertain to the onset of the disorder Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs