Citation Nr: 1316357 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 07-39 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney at Law ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION 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). The Veteran served on active military duty from March 1954 to February 1958. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). A December 2008 Board decision denied service connection for bilateral hearing loss and for tinnitus. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which, in October 2010, affirmed the denial of service connection for tinnitus and vacated and remanded the issue of service connection for bilateral hearing loss back to the Board for a VA examiner and nexus opinion based on all of the evidence of record, including the uninterpreted service audiograms. Based on the Court's decision, the Board remanded this case to the RO in September 2011 for examination and a nexus opinion, which was obtained and added to the claims files in January 2013. As a VA evaluation was conducted in January 2013 in response to the Board remand, there has been substantial compliance with the September 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). FINDING OF FACT There has been no demonstration by competent evidence of record that the Veteran has hearing loss disability due to service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active service; nor may sensorineural hearing loss be presumed to have been so incurred or aggravated. 38 U.S.C.A. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in June 2006, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. The Veteran was also informed of the factors for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA audiological evaluation with nexus opinion was obtained in January 2013 and added to the claims files. 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 examination report obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files. The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinion on file. There is adequate medical evidence of record to make a determination on the service connection issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks service connection for bilateral hearing loss as a result of service exposure to acoustic trauma. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In the case of sensorineural hearing loss, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As is noted above, the Board is required to follow applicable statutes and regulations in its decisions. Applicable regulations provide that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these 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 Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent clinical evidence of record demonstrates bilateral hearing loss "disability" for VA purposes. See 38 C.F.R. § 3.385. The Veteran's service treatment records reveal that his hearing on entrance examination in February 1954 and on separation examination in February 1958 was 15/15 for whispered voice in each ear. Uninterpreted audiograms dated from October 1956 to July 1957 are also of record. St. John's Mercy Medical Center records dated in February 1994 and November 1999 show bilateral hearing loss starting at 2000 hertz; a history of noise exposure was reported. An April 2003 audiogram showed a bilateral sharply sloping profound high frequency sensorineural hearing loss. A VA audiological evaluation was obtained in December 2006. The examiner noted that the claims file was not available. The Veteran complained of exposure to aircraft engine noise in service. Sensorineural hearing loss was diagnosed. The audiologist noted that he could not provide a nexus opinion on whether the Veteran's hearing loss was related to service because the claims file was not available for review. This audiologist subsequently reviewed the claims file and provided an opinion in March 2007 that it was not as likely as not that the Veteran's current hearing loss was causally related to service because an audiogram seven months prior to service separation was considered normal. According to a May 2007 statement from P. D. Shuff, M.D., the Veteran had a long history of high frequency hearing loss, which almost always occurs with noise exposure. Dr. Shuff concluded that the Veteran's bilateral hearing loss was clearly service related. Private medical reports dated in June 2010, February 2011, and September to December 2011 continue to show significant bilateral sensorineural hearing loss. As noted above, in response to the October 2010 Court remand, the Board remanded the case to the RO in September 2011 for a nexus opinion based on all of the evidence, to include consideration of the uninterpreted service audiograms. A VA audiological evaluation was conducted in January 2013. It was noted by the audiologist that the claims files had been reviewed. The Veteran said that he experienced excessive noise exposure as a fire-control technician working on the radar and sight system for the fighter aircraft. He was exposed to jet engines with hearing protection from "little rubber plugs." He indicated that hearing tests in service showed defective hearing. He denied post-service noise exposure. Based on a review of the claims files, including interpretation of the service audiograms, and a current audiological examination of the Veteran, the audiologist concluded that the Veteran's current hearing loss was not at least as likely as not related to service. According to the VA audiologist, an audiogram originally dated in December 1956 and then redated in January 1956 showed a mild loss in the right ear and a normal to moderate loss in the left ear. In January 1957, pure tone thresholds indicated normal hearing in the right ear and a flat, mild loss in the left ear. Approximately 14 days later, on January 31, 1957, the Veteran was tested again, and thresholds indicated a mild loss bilaterally. On February 14, 1957, there was a normal to mild loss in the right ear and a mild loss in the left ear. The audiogram on March 1, 1957 revealed normal hearing in the right ear and a mild to profound "cookie bite," mid-frequency loss, in the left ear. The Veteran's hearing returned to normal bilaterally on an audiogram on March 14, 1957. The Veteran indicated that he was pulled from the flightline and made to work inside the office with the threat of an Article 15 if he was subsequently found on the flightline without hearing protection. His hearing was normal bilaterally when he was examined again on May 10, 1957 and July 12, 1957. Two subsequent audiograms after he was removed from the flightline were also normal. According to the VA audiologist, the landmark report titled "Noise and Military Service - Implications for Hearing Loss and Tinnitus" (2006), from the Institute of Medicine, concluded that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to the noise exposure if hearing was normal immediately after the noise exposure. Consequently, the audiologist concluded that, as the Veteran was removed from noise exposure in service and his hearing returned to normal bilaterally, and his pure tone thresholds were grossly intact at separation approximately seven months later, it is less likely than not that his current hearing loss is related to military noise exposure. The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). After review of the evidence as a whole, the Board finds the evidence against the claim, especially the January 2013 VA evaluation, to be more probative than the evidence in favor of the claim. Although Dr. Shuff concluded in May 2007 that the Veteran's hearing loss was clearly service related, this opinion is not based on a review of the claims files, does not discuss the multiple service audiograms, and does not cite to any medical authority. On the other hand, the January 2013 VA opinion is based on a review of the pertinent evidence, provides a nexus opinion with supporting rationale based on the service audiograms, and cites to a relevant medical report. The lay statements on file have been taken into consideration in this case. Although the Veteran is competent to report his hearing symptoms, the Board finds that the Veteran is not competent to opine as to whether any current hearing loss is due to service exposure to acoustic trauma. Such opinion involves a complex medical matter, and the Veteran has not been shown to have any medical training. Consequently, because all of the requirements for service connection are not shown, the Veteran does not have a bilateral hearing loss as a result of service. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs