Citation Nr: 1316708 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-28 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in part, denied the Veteran's claim of service connection for bilateral hearing loss. In March 2013, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and is of record. FINDINGS OF FACT 1. The Veteran is not currently shown to have a right ear hearing loss disability by VA standards. 2. A left ear hearing loss disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current hearing loss of the left ear disability is related to active military service. CONCLUSIONS OF LAW 1. A right ear hearing loss disability was not incurred in or aggravated by the Veteran's active military service, and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. A left ear hearing loss disability was not incurred in or aggravated by the Veteran's active military service, and it may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). In this appeal, the RO provided notice to the Veteran in a January 2009 letter prior to the date of the issuance of the appealed February 2009 rating decision. The January 2009 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. Additionally, he was afforded VA examinations in February 2009 and September 2011, which appear to be thorough and adequate on which to base a decision. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during 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. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that he has a current hearing loss disability related to service. He testified at his March 2013 hearing that as a torpedo man during his service, he took part in decompression testing that damaged his hearing. He also claimed that he was exposed to noise trauma while serving aboard a Destroyer. 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, 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 Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's service treatment records are negative for treatments or complaints related to hearing loss or tinnitus. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). However, the August 1963, October 1963 and May 1964 hearing evaluations discussed below appears to have been conducted using the ASA standards. Therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. For ISO conversion, the Board added (+15) (+10) (+10) (+10) (+5). Audiometric testing at the Veteran's entrance examination in August 1963 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0(10) 0(10) 0(10) 0(5) LEFT 0 (15) 0(10) 0(10) 0(10) 0(5) Audiometric testing in at the Veteran's submarine duty examination in October 1963 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) Audiometric testing in at the Veteran's submarine duty examination in May 1964 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -10 (0) -10 (0) -10 (0) 0 (5) LEFT -5 (10) -10 (0) -5 (5) -10 (0) 5 (10) At the Veteran's separation examination in September 1967, the whisper test was 15/15. Audiometric testing by a private physician in December 2008 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 30 n/a 35 LEFT 25 25 30 n/a 30 The Veteran underwent a VA examination in February 2009. The examiner noted that the Veteran's reported hearing loss had existed for 2 years and there had been a gradual change in hearing over the years. The Veteran noted that his military duties included being a torpedo man using acoustic equipment and being a demolition expert. After service, he worked as a salesman for 39 years. On physical examination, the right and left side were within normal limits. Audiometric testing in February 2009 revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 20 35 LEFT 5 15 30 25 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 percent in the left ear. Audiometric testing in February 2009 revealed pure tone thresholds, obtained by bone conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 25 30 LEFT 10 20 35 25 30 The examiner noted that an air conduction study was better than bone conduction to reflect the Veteran's hearing loss. The diagnosis was mild high frequency sensorineural hearing loss of the left ear. The Veteran's right ear had a mild, sensorineural hearing loss. The examiner concluded that it was less likely than not that the Veteran's hearing loss was related to the onset of hearing loss. The examiner noted that the Veteran indicated that his hearing loss began 2 years ago and had been gradual. The Veteran underwent a VA examination in September 2011. The Veteran reported that he had bilateral hearing loss which had existed for 46 years. He reported that he realized now that he began having problems with his hearing after the Navy put him through a series of decompression tests prior to being assigned to submarine duty. He claimed that he was never assigned to a submarine because they knew that he had problems with his hearing. Post-service, he was a salesman for 43 years. He also hunted and did recreational shooting without hearing protection. He also rode motorcycles, rode personal watercrafts and used other loud recreational equipment without using hearing protection. He had a history of ear trauma from decompression testing for submarine duty. Audiometric testing in September 2011 revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 30 35 LEFT 30 25 35 30 30 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 76 percent in the left ear. Audiometric testing in September 2011 revealed pure tone thresholds, obtained by bone conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 30 25 LEFT 20 20 25 30 25 The examiner noted that an air conduction study was better than bone conduction to reflect the Veteran's hearing loss. The diagnosis was mild sensorineural hearing loss of the right ear and left ear. The examiner noted that the Veteran's right ear did not have a hearing loss per VA standards. The examiner reviewed the Veteran's service treatment records, previous audiograms and letters of support from the Veteran's friends and family when determining that the Veteran's left ear hearing loss was less likely than not related to military noise exposure due to the fact that there were 2 records between 2008 and 2009 that showed that the left ear hearing thresholds were better than the current examination. The examiner noted that it seemed like the primary reason that the left ear was labeled as having a VA standard hearing loss was due to the word discrimination score on the 2009 examination being less than 94 percent. The pure tone threshold average from 500 to 4000Hz was 24 decibels compared to the examination today which was 30 decibels. The examiner concluded that if there had been a change in hearing since 2009, it would not be service related. Considering the claims for service connection for right ear and left ear hearing loss, in light of the record and the governing legal authority, the Board finds that the claims must be denied. Regarding the Veteran's claim for right ear hearing loss, based upon review of the record and the Veteran's contentions, it is conceded that the Veteran indeed had noise exposure during service. However, the most probative post-service evidence demonstrates that the Veteran does not have a current hearing loss disability in the right ear as defined by 38 C.F.R. § 3.385, as the auditory thresholds were not 40 decibels or greater at any of the frequencies, the auditory thresholds at the minimum three of the frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition score was not less than 94 percent. See 38 C.F.R. § 3.385. The Board notes that there is conflicting evidence as to whether the Veteran has a current diagnosed right ear hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. As noted above, the Audiometric testing by a private physician in December 2008 revealed auditory thresholds of at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz as 26 decibels or greater. Specifically, the 1000Hz frequency was 30, the 2000Hz frequency was 30 and the 4000Hz frequency was 35. Conversely, the February 2009 and September 2011 VA examinations specifically found that the auditory thresholds of the right ear were not 40 decibels or greater at any of the frequencies, the auditory thresholds at the minimum three of the frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition scores were not less than 94 percent. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this instance, the most recent VA examinations found that the Veteran did not have a right ear hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. The VA examiners conducted full audiology examinations as well as speech recognition testing using the Maryland CNC test. Given the consistent results of these two examinations, and their more thorough nature in that they included both audiometric and speech recognition testing, the Board finds them to be the most probative evidence of record as to whether he has a current right ear hearing loss disability as defined by regulation. Given the absence of a current right ear hearing loss disability, service connection is not warranted. The Board appreciates the Veteran's contentions and statements related to his claimed right ear hearing loss. Even conceding that the Veteran was exposed to significant noise in service, the most probative evidence does not show a right ear hearing loss disability by VA standards. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, competent and persuasive medical evidence establishes that the Veteran does not have a right ear hearing loss disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the claim for service connection for right ear hearing loss must be denied because the first essential criterion for a grant of service connection-competent evidence of the currently-claimed disability-has not been met. Regarding the Veteran's left ear hearing loss claim, the record shows that the Veteran currently has left ear hearing loss for VA compensation purposes as noted throughout the record. The first element of medical evidence of a current disability is accordingly met. With respect to the second element of an in-service disease or injury, the Board will separately discuss disease and injury. A review of the service treatment records, including the examination report at service discharge, does not reveal diagnoses or complaints of hearing loss. Notably, the May 1964 examination actually demonstrated slight improvement when compared with the results of the August 1963 entrance examination. Thus, a hearing loss disability as defined by 38 C.F.R. § 3.385 was not shown in service. Turning to in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service. In particular, he has cited to a history of noise exposure and claimed that he participated in decompression testing that damaged his hearing. In this regard, the Veteran is competent to give evidence about what he experienced, and acoustic trauma is subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, the Board finds that the Veteran was exposed to hazardous noise during service and Shedden element (2) is satisfied. With respect to crucial Shedden element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current left ear hearing loss and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds the September 2011 VA examination report to be highly probative, as it is based on a thorough review of the Veteran's medical records and cites to relevant medical principles. The opinion is also consistent with the other evidence of record and is supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Furthermore, the opinion was obtained from a licensed medical professional rather than a lay person. As to the provisions of 38 C.F.R. § 3.303(b) , discussed above, relating to chronicity and continuity of symptomatology, the Board notes that the Veteran's left ear hearing loss disability is sensorineural in nature and is therefore arguably a disease of the central nervous system. Thus, the Board will consider whether service connection based on a continuity of symptomatology is warranted. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, there is no dispute that Veteran and his family members are competent to describe symptoms and difficulties due to hearing loss because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[S]ometimes 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."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. Here, the Board finds that the history of hearing difficulty since active service provided by the Veteran and his relatives, while competent, is nonetheless not credible. As noted, the Veteran's service September 1967 service separation examination is negative for any treatment, complaint, or diagnosis of a hearing loss disability. In addition, during the February 2009 VA examination wherein he was first questioned by a health care provider regarding the date of onset of his hearing problems, he specifically reported that he first noticed it two years ago. The Board recognizes that the Veteran has subsequently challenged the accuracy of the history noted in that report. However, in that same report, it was noted that the Veteran had reported that his now service-connected tinnitus began during service in 1964. Given that it was recorded that the Veteran did specifically report that his tinnitus began in 1964 while at the same time reporting that his hearing loss began only two years before, the Board must reject his subsequent arguments that the history recorded therein was inaccurate as not credible. In essence, it appears that his history of symptomatology was fully and thoroughly obtained the VA examiner prior to the completion of this report. Furthermore, as to the date of onset of his symptoms, the Board finds that statements made directly to a health care provider by the Veteran during the course of examination are inherently more credible than contrary statements subsequently provided by the Veteran and his relatives in support of a claim for monetary benefits. There is simply no credible evidence to support the assertions that the Veteran had left ear hearing loss since service. For the reasons set forth above, however, the Board finds the statements of the Veteran and his relatives asserting continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In the absence of any persuasive evidence that the Veteran's current left ear hearing loss disability is etiologically related to active service, and in light of the VA medical opinion indicating that such a relationship is unlikely, the Board finds that service connection is not warranted and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs