Citation Nr: 1316564	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO.  09-38 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from April 1968 to January 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has a current bilateral hearing loss disability that is etiologically related to a disease, injury or event in service.


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


I.  Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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. 

A VCAA letter dated in March 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Furthermore, this letter described how appropriate disability ratings and effective dates were assigned.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's available service treatment records and relevant VA and private medical records are in the file.  The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  The record contains sufficient evidence to make a decision on the claim.  VA has fulfilled its duty to assist.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  The Veteran was provided VA examinations in June 2008 and July 2009 which addressed his claim for service connection for a bilateral hearing loss disability.  The examiners conducted the appropriate diagnostic tests, and considered the Veteran's reported history.  The Board finds these examination reports and opinions to be thorough and complete.  Therefore, the Board finds these examination reports and opinions sufficient upon which to base a decision with regard to this service connection claim.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  The Board also observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011).  Here, the VA examiners included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects.  In light of the foregoing, the Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

	A.  General Law and Regulations

In general, service connection may be granted for disability 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.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004).

For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest 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(a) (2012).

A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service.  38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  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 (2012).

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

	B.  Factual Background and Analysis

The Veteran's service treatment records reflect that his military occupational specialty was 64B20 (heavy vehicle operator).

On April 1968 service entrance physical examination, a clinical evaluation of the Veteran's ears was normal.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
-5
-5
-5
-5
-5
LEFT
-5
-5
-5
-5
-5

The Veteran indicated on an April 1968 service entrance Report of Medical History (RMH) that he did not experience hearing loss.

On November 1969 service separation physical examination, a clinical evaluation of the Veteran's ears was normal.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
5
--
0
LEFT
5
0
5
--
0

The Veteran indicated on a November 1969 RMH that he did not experience hearing loss.

The Veteran submitted an uninterpreted audiogram from a private audiologist taken in October 2006.  The report reflects that the Veteran had a speech discrimination score of 56 percent in his right ear and 64 percent in his left ear.

In March 2008, the Veteran remarked that while on active duty, he performed with a rifle team.  He said that he had hearing loss from shooting on the rifle team.

On VA audiological examination in June 2008, the Veteran reported that he had his greatest difficulty understanding speech when more than one person was present and talking.  The Veteran also reported difficulty understanding quiet speech when background noise was present.  The examiner noted that the Veteran was in receipt of an expert rifle award and was the member of a shooting team while on active duty.  The Veteran reported that he was exposed to rifle fire without wearing ear protection; additionally, he said he was exposed to engine noise without wearing ear protection.  It was further noted that post-service, the Veteran was exposed to noise by mowing lawns and going hunting once a year.  The Veteran reported that he used hearing protection when he went target shooting, used power tools, and used chain saws post-service.  


Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
30
45
45
55
50
LEFT
35
45
50
55
60

Speech discrimination scores were 94 percent in the right ear and 92 percent in the left ear.  Diagnoses of normal to severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear were given.  After reviewing the Veteran's records, the examiner opined that the Veteran's hearing loss was less likely as not caused by or a result of in-service noise exposure.  The examiner explained that a hearing test conducted within two months of the Veteran's release from active duty yielded normal results; as such, it appeared that the Veteran's current hearing loss occurred after his active duty.  The examiner further indicated that an Institute of Medicine Report from 2006 indicates that there is no scientific basis for delayed or late onset noise-induced hearing loss.

In the Veteran's June 2009 notice of disagreement, the Veteran maintained that his operation of heavy equipment and participation on the rifle team while on active duty affected his hearing.  He described his current difficulty hearing others.

Lay statements from four of the Veteran's colleagues submitted in June 2009 indicate that the Veteran had decreased hearing acuity after he left active duty.

In July 2009, the Veteran remarked that he noticed before his discharge from active duty that he was starting to lose his hearing in his right ear.  He subsequently noticed hearing loss in his left ear.  He reiterated that he did not always have hearing protection while participating on the rifle team.

On VA compensation and pension examination in July 2009, the Veteran reported that he had difficulty trying to speech around background noise, while watching television, and while on the telephone.  The Veteran recounted his experiences being exposed to noise as a heavy vehicle operator and as a member of a rifle team while on active duty.  He additionally reported a post-service history of power tool usage with hearing protection and hunting with firearms without hearing protection.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
30
55
45
55
55
LEFT
40
50
50
50
60

Speech discrimination scores were 94 percent in the right ear and 96 percent in the left ear.  A diagnosis of mild to profound sensorineural bilateral hearing loss was given.  The examiner opined that the Veteran's bilateral hearing loss was less likely as not cause by a result of in-service military noise exposure.  The examiner explained that the Veteran's enlistment and separation examinations showed his hearing to be within normal limits bilaterally.  She also noted the 2006 Institute of Medicine Report which indicates that there is no scientific basis at this time to support delayed or late onset noise-induced hearing loss.  She concluded by reiterating that it was her professional opinion that the Veteran's hearing loss was less likely as not caused by or a result of military noise exposure.

Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for both left and right ear hearing loss.  

In this regard, the Board notes that there is a remarkable lack of credible evidence of pathology during service and for many years following separation.  With the exception of the Veteran's slight increase in pure tone thresholds between the 1968 and 1969 audiological examinations, the service treatment records are negative for hearing loss complaints.  Moreover, the thresholds did not reach a level to warrant a finding of a hearing loss disability for VA purposes under 38 C.F.R. § 3.385.  Notably, the Veteran himself indicated on a Report of Medical History at the end of his active duty service that he did not experience hearing loss.

Although the Veteran later reported decreased hearing acuity, it appears that the earliest post-service diagnosis of bilateral hearing loss was during the October 2006 private audiological examination.  The Veteran has not indicated any other treatment for hearing problems.  

The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service.  Although the evidence record shows a current bilateral hearing loss, it does not contain reliable evidence which relates the claimed disability to any injury or disease in service.  

The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Veteran has stated that he experienced symptoms of hearing loss during service, and that he continued to have such symptoms following discharge from active service.  Additionally, he had submitted lay statements indicating that he had decreased hearing acuity following his service.  However as discussed above, the Veteran's previous statements, to include the findings of his separation physical examination and Report of Medical History, do not point to onset during service and fail to show complaints suggestive of hearing loss in the years following service.  In fact, such assertion is directly contradicted by the contemporaneous RMHs completed by the Veteran during service that deny hearing problems.  Rather, the first evidence demonstrating hearing loss dates to 2006.  As such, the Board finds that the more recent lay statements regarding symptoms during service and in the years directly thereafter to be not credible and unreliable to establish onset of the claimed disability.  In summary, the Board finds that the negative record at service discharge and in the years following service is more probative than the more recent lay statements.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

The Board additionally notes that the VA audiologists who conducted the June 2008 and July 2009 examinations concluded that the bilateral hearing loss was less likely as not the result of noise exposure during active duty.  Both examiners discussed the pertinent evidence, noting that the enlistment and separation examinations showed normal hearing (for VA purposes) with no significant shift for either ear.  In essence, despite examining the Veteran, obtaining a history from him, and reviewing pertinent service and post-service records, both examiners were unable to link the Veteran's hearing loss disability to his military service.  Each audiologist provided a reasoned opinion, based on complete review of the record, interview, and examination.  In assigning high probative value to these examiner's conclusions, the Board notes that each had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination.  There is no indication that each VA examiner was not fully aware of the Veteran's past medical history or that either misstated any relevant fact.  The Board thus finds both VA examiners' conclusion that the Veteran's bilateral hearing loss is less likely than not related to his service to be of greater probative value than the unsupported lay statements.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Absent competent and reliable lay or medical evidence relating these claimed disabilities to service, and in consideration of the VA opinions discussed above, the Board concludes that the claim of entitlement to service connection for bilateral hearing loss must be denied.  The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs