Citation Nr: 1316170 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 05-38 181 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1967 to January 1969, to include service in Vietnam. This appeal to the Board of Veterans' Appeals (Board) initially arose from an April 2005 rating decision in which the RO, in pertinent part, denied the Veteran's claim for service connection for bilateral hearing loss. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge in Washington, D.C. A September 2007 letter informed him that his hearing was scheduled for November 2007. However, in correspondence received in October 2007, the Veteran cancelled his requested hearing. In April 2011, the Board, inter alia, denied the Veteran's claim for service connection for bilateral hearing loss. The Veteran appealed the April 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, the Court, inter alia, granted the Joint Motion for Remand (JMR) filed by representatives of both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the Joint Motion. In July 2012, the Board, inter alia, remanded the claim for service connection to the RO, via the Appeals Management Center (AMC), for further action, to include additional development of the evidence. In September 2012, the Board, inter alia, again remanded the claim for service connection to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested action, the AMC continued to deny the claim (as reflected in a February 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. A review of the paperless, electronic Virtual VA claims processing system reveals VA treatment records dated through April 2012; such records were considered by the AMC in the August 2012 SSOC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. Bilateral hearing loss disability was not shown in service or for many years thereafter; there is no credible evidence of any diminished hearing during, and continuing since, service;, and the only medical opinion that directly addresses the medical relationship, if any, between current bilateral hearing loss and service weigh against the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112.See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in August and September 2004 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection. These letters provided notice as to what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The April 2005 RO rating decision reflects the initial adjudication of the claim after the issuance of the August and September 2004 letters. Post rating, an April 2007 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After the issuance of the April 2007 letter, and opportunity for the Veteran to respond, the June 2010 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the claim. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records as well as VA and private treatment records. Also of record and considered in connection with the appeal are the Veteran's outstanding VA treatment records, Social Security Administration (SSA) records and reports of the VA examination, as requested by the Board in its April 2009, July 2012 and September 2012 remands. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, there are various written statements provided by the Veteran, and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system (interpreted to include sensorineural hearing loss), shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels of greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that his exposure to loud noise during service has caused the claimed bilateral hearing loss. Specifically, he asserts that in-service noise exposure while firing machine guns on the rifle range and in combat and during a demolition course resulted in his hearing loss. Additionally, the Veteran contends that the diesel trucks he rode in made a constant, loud whistle, that there was a loud explosion near his jeep during a rocket attack while he was in Vietnam, and that on another occasion in Vietnam a jet crashed near his convoy. The Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incident of acoustic trauma. However, the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991). The Board notes that his Form DD-214 shows that his military occupational specialty was light vehicle driver and that he had qualified on the rifle range. Additional service personnel records show that he participated in the TET Counteroffensive. Given the circumstances of the Veteran's duties in service, the Board finds that he was likely exposed to some noise in service. Thus, although there is no objective evidence to support a specific incident of acoustic trauma in service, the Board accepts the Veteran's assertions of in-service noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154. That fact notwithstanding, the Board also finds that the record presents no basis for the grant of service connection for bilateral hearing loss. Service treatment records reflect no complaints of diminished hearing of the ears, and reveal that hearing during service and at separation was within normal limits (audiogram results were within normal limits). Thus, bilateral hearing loss disability was not shown during service. The Board notes, however, that the absence of in-service evidence of hearing loss is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). An October 1982 VA treatment note reflects the Veteran's report of a history of hearing loss for the past 10 years that had gotten progressively worse. He also reported a history of noise exposure but that he protected his ears. In a November 1982 VA treatment note, the Veteran reported a history of noise exposure in the military and recreationally. He also reported the use of ear protection since he noted difficulty hearing. On audiometric testing, pure tone thresholds, in decibels, were as follows: Hertz 500 1,000 2,000 3,000 4,000 Right 10 15 30 50 50 Left 5 15 55 X 50 Speech recognition scores on the Maryland CNC Word list were 84 percent in the right ear and 88 percent in the left ear. An assessment of moderate mid to high frequency sensorineural hearing loss with a configuration similar to noise induced hearing loss was made. A July 2004 VA treatment record indicates that the Veteran complained of decreased hearing and a diagnosis of bilateral sensorineural hearing loss was made on objective examination. In an August 2004 VA audiology consult note, the Veteran complained of a 30-year history of bilateral hearing loss and denied recreational noise exposure. The diagnosis was bilateral, asymmetrical, mid to high frequency sensorineural hearing loss on objective examination. In an April 2005 VA psychiatric examination report, the Veteran detailed his post-service occupational experience. He reported that he had worked as a surveyor's helper for five years, in fire control until 1980, in construction and as a prison guard. In a June 2004 SSA application, the Veteran reported that he had worked as a surveying instrument man from 1996 to 2004 and as a correctional officer from 1987 to 2002. The Veteran was afforded a VA audiological evaluation in January 2007. On audiometric testing, pure tone thresholds, in decibels, were as follows: Hertz 500 1,000 2,000 3,000 4,000 Right 10 25 60 60 70 Left 10 20 65 60 70 Speech recognition scores on the Maryland CNC Word list were 92 percent in the right ear and 92 percent in the left ear. The audiologist noted that the Veteran had normal hearing bilaterally at both entrance and separation from service, confirmed by pure tone threshold findings. The Veteran complained of bilateral hearing loss since a rocket exploded in close proximity to his convoy during his service in Vietnam. The Veteran indicated that he had the greatest difficulty in understanding speech in the presence of background noise or when he did not wear his hearing aids. The audiologist noted that the Veteran had no history of pre-military noise exposure and that his military noise exposure included noise from machine guns, rockets, diesel trucks and mortars. The audiologist also noted that the Veteran had post-service noise exposure associated with his work as a correctional officer and seasonal hunting. The diagnosis was bilateral, symmetrical, high frequency sensorineural hearing loss of a moderately-severe to severe degree. The audiologist opined that, as the separation physical indicated normal hearing bilaterally, confirmed by pure tone threshold findings, that it was less likely as not that the Veteran's hearing loss was caused by or was the result of his military noise exposure. In a May 2007 statement, the Veteran's friend wrote that he had known the Veteran all of his life and that he had excellent hearing prior to service. The author wrote that they were "hunting buddies" before the Veteran entered service and that he was able to hear wild game without any problem. After service, it was obvious that "this was no longer the case." In an October 2007 statement, the Veteran wrote that his hearing loss occurred during his tour in Vietnam and was caused by machine gun fire, the roar of diesel trucks and the explosion of rockets. His hearing loss had been a constant source of frustration for the past 40 years. The Veteran was afforded a VA audiological examination in December 2009. On audiometric testing, pure tone thresholds, in decibels, were as follows: Hertz 500 1,000 2,000 3,000 4,000 Right 15 25 65 60 65 Left 10 25 65 65 65 Speech recognition scores on the Maryland CNC Word list were 94 percent in the right ear and 94 percent in the left ear. The audiologist noted that the Veteran had normal hearing bilaterally at both entrance and separation from service, confirmed by pure tone threshold findings. To that end, the audiologist explained that there were no significant threshold shifts between the entrance and exit hearing examinations. The audiologist also noted that the Veteran's account of the onset of hearing loss remained wholly unchanged from previous report. The diagnosis was moderately-severe hearing loss above 1000 Hertz in both ears. The audiologist opined that the hearing loss was not caused by the Veteran's military noise exposure. To that end, the audiologist explained that the hearing loss was not related to the Veteran's military noise exposure because the Veteran had normal hearing at his separation from service, and that there were no significant threshold shifts in comparing the entrance and separation hearing examinations. The Veteran was afforded a VA ear disease examination in March 2010. On objective examination, the diagnosis was a normal ears, nose and throat (ENT) examination. An opinion as to the etiology of hearing loss was deferred to audiology. In an April 2010 addendum, the physician explained that the audiologist was the expert in hearing and hearing-related disorders. The physician indicated that there was nothing that he could add to the Veteran's evaluation. In a May 2012 statement, the Veteran's friend wrote that he had known the Veteran since they were children and that the Veteran used to have the best hearing of anyone he knew. After service, the Veteran was not able to hear much of anything unless you were yelling at him. A VA audiology Disability Benefits Questionnaire (DBQ) opinion was obtained in August 2012 and was drafted by the same examiner who provided the December 2009 opinion. The examiner opined that that it was less likely than not (less than 50 percent probability) that the Veteran's bilateral hearing loss was incurred in or caused by the claimed in-service injury, event or illness as he had normal hearing when he left the military and there were no significant shifts when compared to his entrance examination. According to the Institute of Medicine's report on the implications of hearing loss, noise and military service published in September 2005, noise induced hearing loss occurred in close proximity to the actual noise exposure. The examiner noted that if the hearing loss was caused by the Veteran's military noise exposure, it would have been present at his exit hearing examination in January 1969. In addition, the examiner noted that the Veteran had post-service occupational noise exposure as a correctional officer for 13 years and recreational noise exposure from hunting. Therefore, the examiner opined that the Veteran's hearing loss was most likely related to his post-service occupational and recreational noise exposure. A VA audiology DBQ addendum opinion was obtained in October 2012 and was drafted by the same examiner who provided the December 2009 and August 2012 opinions. The examiner again opined that it was less likely than not (less than 50 percent probability) that the Veteran's bilateral hearing loss was incurred in or caused by the claimed in-service injury, event or illness as he had normal hearing when he left the military and there were no significant shifts when compared to his entrance examination. The examiner noted that the Veteran started showing bilateral hearing loss in 1982, which was 13 years after he left the military. The examiner again cited to the findings of the September 2005 Institute of Medicine's report on the implications of hearing loss, noise and military service and noted that the Veteran had post-service occupational noise exposure as a correctional officer for 13 years and recreational noise exposure from hunting. The examiner again opined that the Veteran's hearing loss was most likely related to his post-service occupational and recreational noise exposure. The examiner's opinion is consistent with the evidence of record Notwithstanding the Veteran's credible assertions of in-service noise exposure, the Veteran's service discharge examination reflects hearing that was within normal limits. With respect to post-service medical records, the first evidence of hearing loss was in an October 1982 VA outpatient treatment note. As noted above, there is nothing in the Veteran's service records to indicate hearing loss had its onset during service or shortly after service. Rather, the first medical evidence of such hearing loss was in 1982, approximately 13 years after the Veteran separated from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, there is no competent evidence or opinion even suggesting that there exists a medical nexus between the bilateral hearing loss diagnosed so many years after the Veteran's discharge and any incident of service. None of the VA medical records treatment records reflect any such opinion or even comment to that effect, and neither the Veteran nor his representative has presented or identified any such existing medical evidence or opinion. In fact, in the only opinion to address the medical etiology question, as noted, the VA audiology examiner declined to find a nexus between the Veteran's bilateral hearing loss and his service. As such opinion was based on examination of the Veteran and consideration of his documented medical history and assertions, and supported by stated rationale, the Board accepts this opinion as probative of the medical nexus question. Significantly, the Board notes that the VA audiology examiner found that the Veteran's bilateral hearing loss was most likely related to his post-service occupational and recreational noise exposure and had cited to a September 2005 Institute of Medicine report, which found that noise-induced hearing loss occurred in close proximity to actual noise exposure, in support of this opinion. The Board notes that the Veteran has, on occasion, alleged a continuity of symptomology with regards to his hearing loss, which he is competent to assert. However, he has not been consistent in his assertions regarding the onset and presence of such hearing loss. Hearing loss as well as ear trouble of any sort was denied by the Veteran in a January 1969 Report of Medical History. The Veteran reported in an October 1982 VA treatment note that he had experienced hearing loss for 10 years (i.e. since 1972); such statements were made during the course of treatment for hearing loss and made many years prior to the filing of the instant claim for service connection. The Board notes that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). The Board, therefore, accords the Veteran's October 1982 statements regarding the onset of his hearing loss more probative weight than any report of hearing loss made in connection with, or, presumed by the filing of, the Veteran's June 2004 claim for service connection. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Moreover, while an August 2004 VA treatment note reflects that the Veteran denied recreational noise exposure, he reported post-service recreational hunting in December 2009 and the May 2007 statement from his friend suggests such activity. In light of these contradictory statements, the Board finds that any current assertions as to experiencing hearing loss during service, as well as his denials of post-service noise exposure, advanced in furtherance of the appeal, are deemed not credible. Furthermore, as for any direct assertions by the Veteran, his friends and/or his representative that there exists a medical relationship between the Veteran's bilateral hearing loss and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability here at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As none of the identified individual is shown to be other than a layperson without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, the lay assertions of medical nexus have no probative value. For all the foregoing reasons, the claims for service connection for bilateral hearing loss must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 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 Service connection for bilateral hearing loss is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs