Citation Nr: 1316931	
Decision Date: 05/23/13    Archive Date: 05/31/13

DOCKET NO.  12-33 693	)	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:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty for more than 20 years prior to his retirement in June 1976, this included service in the Republic of Vietnam.  Among his awards and decorations, he received the Bronze Star and Air Medals.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  In that decision, the RO denied entitlement to service connection for bilateral hearing loss.

In April 2013, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012).  38 U.S.C.A. § 7107 (a)(2) (West 2002).

The Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for posttraumatic stress disorder.  In September 2010, a Decision Review Officer granted service connection for this disability, and thereby resolved the appeal as to that issue.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDING OF FACT

A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year.  


CONCLUSION OF LAW

Bilateral hearing loss was not incurred or aggravated in service, and a sensorineural hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.404, 3.307, 3.309, 3.385 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a pre-adjudication letter dated in November 2010, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for bilateral hearing loss.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the November 2010 letter.  

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

VA obtained the Veteran's service treatment records and pertinent service personnel records.  The Veteran has not reported, and the evidence does not otherwise reflect, any relevant post-service VA or private medical treatment for hearing loss.  In addition, the Veteran was afforded a VA examination to assess the nature and etiology of his current hearing loss and opinions have been obtained concerning the etiology of this disability.

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (e.g. sensorineural hearing loss), is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

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).  

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Hearing loss is considered to be a disability for VA purposes 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In this case, a May 2011 VA examination report reveals that the Veteran has been diagnosed as having bilateral hearing loss as defined by VA.  See 38 C.F.R. § 3.385.  A diagnosis of bilateral sensorineural hearing loss was provided.  Thus, current hearing loss has been demonstrated.

The Veteran contends that his current hearing loss is related to exposure to loud noises in service without the use of hearing protection.  Specifically, he has reported that he was exposed to noises associated with helicopters, military weaponry, explosives, and military equipment while serving in Vietnam and in the vicinity of the Suez Canal while de-mining operations were being conducted.  He has also reported occupational noise exposure while employed as a television camera operator in the years since service, but there is no other significant post-service noise exposure.  Although the Veteran himself has never reported a continuity of symptomatology with respect to his hearing loss, his representative claimed in an April 2013 statement that hearing loss began in service and had continued in the years since that time.

The evidence reflects that the Veteran may have been engaged in combat while in service in Vietnam.  He has reported that he served as a combat photographer in Vietnam and that he was exposed to incoming enemy fire on various occasions while performing his duties.  His service personnel records reflect that he served in Vietnam from December 1964 to December 1965 and from April 1970 to April 1971 and that he participated in various Vietnam campaigns.  During this time, his military occupational specialty involved still photography, he served as a combat cameraman in various locations in Vietnam, and he received the Bronze Star Medal and Air Medal for meritorious achievement in connection with aerial and ground operations against hostile forces.

The Veteran is competent to report combat exposure in service.  See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337.  In-service noise exposure, such as that described by the Veteran, could be consistent with the circumstances of his service.

Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service.  38 U.S.C.A. § 1154(b).  Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute.  First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease."  Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service."  Finally, if the first two requirements are met, VA shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists.  In such a case, a factual presumption arises that the alleged injury or disease is service-connected.  Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304.

However, the presumptions of 38 U.S.C.A. § 1154(b) do not extend to the nexus element of a claim of service connection.  Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997).

Assuming without deciding that the Veteran engaged in combat during service and assuming that he was exposed to acoustic trauma in service, the claim must nevertheless be denied, as explained below.  

With regard to the remaining element of the claim of service connection for bilateral hearing loss (i.e. the nexus element), the Veteran's reports must be weighed against the objective evidence and their credibility must be assessed.  See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337.

There is no evidence of any complaints of or treatment for hearing loss in the Veteran's service treatment records and audiometry tests conducted during service did not reveal any hearing loss as defined by VA.  Specifically, audiometry tests conducted in June 1962 and April 1967 reveal that his pure tone thresholds were as follows, respectively:


Hertz
500
1,000
2,000
3,000
4,000
Right ear
5
-5
10
not tested
15
Left ear
-5
-5
10
not tested
-10


Hertz
500
1,000
2,000
3,000
4,000
Right ear
10
10
10
not tested
10
Left ear
10
5
5
not tested
5

As the above audiometric tests were administered prior to October 31, 1967, they may require conversion from American Standards Association (ASA) units to International Standards Organization (ISO) units.  Such conversion indicates that the pure tone thresholds were as follows, respectively:

Hertz
500
1,000
2,000
3,000
4,000
Right ear
20
5
20
not tested
20
Left ear
10
5
20
not tested
-5

Hertz
500
1,000
2,000
3,000
4,000
Right ear
25
20
20
not tested
15
Left ear
25
15
15
not tested
10

Also, audiometry tests conducted in August 1968 and August 1975 reveal that the Veteran's pure tone thresholds were as follows, respectively:

Hertz
500
1,000
2,000
3,000
4,000
Right ear
10
5
5
not tested
10
Left ear
10
5
5
not tested
10

Hertz
500
1,000
2,000
3,000
4,000
Right ear
15
10
5
10
20
Left ear
10
10
10
20
20

The Veteran reported a nonspecific history of "ear trouble" on a January 1957 report of medical history completed for purposes of separation from service.  However, he specified on May 1970 and August 1975 reports of medical history completed for purposes of a non crewmember flight and an annual examination that he was not experiencing, nor had he ever experienced, any hearing loss.  Also, his January 1957 separation examination was normal other than for pes planus and a tattoo and the results of a whispered voice test conducted at that time were normal (15/15) bilaterally.  There is no report of any separation examination with respect to the period of service from June 1959 to June 1976 currently in the claims file.

If a chronic disease, such as an organic disease of the nervous system (e.g. sensorineural hearing loss), is shown in service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).  There must, however, be sufficient observations in service to identify the disease entity.  Id.  As discussed above, there is no evidence showing any diagnosed sensorineural hearing loss in service.  Hence, service connection cannot be granted on this basis here.

The objective evidence otherwise indicates that the Veteran's current hearing loss did not manifest until many years after service.  A report of a VA examination conducted in August 1976 includes a specific report that there was no noticeable hearing defect of the normal conversational voice at the time of the examination. The first post-service report of hearing loss is the Veteran's October 2010 service connection claim (VA Form 21-4138).  Also, the first post-service clinical evidence of hearing loss is the May 2011 VA examination report which reveals that the Veteran was diagnosed as having bilateral sensorineural hearing loss as defined by VA.  

There is no clinical evidence of any earlier hearing loss following service.  The absence of any evidence of hearing loss for over thirty years after the Veteran's separation from service in June 1976 weighs against a finding that his current hearing loss was present in service or in the year or years immediately after either period of service.

In light of the absence of any objective evidence of complaints of or treatment for hearing loss during service, the fact that all audiometric tests conducted during service reflected that the Veteran's hearing was within normal limits, the fact that he specifically denied having any hearing loss in May 1970 and August 1975, the fact that his January 1957 separation examination was normal other than for pes planus and a tattoo, and the absence of any evidence of hearing loss for decades following service, the Board concludes that any reports of a continuity of symptomatology since service are not credible.  Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection on this basis.

Moreover, the only medical opinions of record reflect that the Veteran's current hearing loss is not related to service.  The audiologist who conducted the May 2011 VA examination opined that the hearing loss was not caused by or a result of military related acoustic trauma.  The examiner reasoned that the August 1975 examination in service revealed that the Veteran's hearing was not considered disabling according to VA criteria.  Although his military occupational specialty very likely exposed him to high risk noise, his service treatment records did not indicate that such noise resulted in disabling hearing impairment.

In October 2012, the examiner who had conducted the May 2011 VA examination re-reviewed the Veteran's claims file and again opined that his hearing loss was not caused by or a result of military related acoustic trauma.  This opinion was based on the fact that the Veteran's hearing was tested on a regular basis between February 1959 and August 1975 and that all hearing tests in his service treatment records documented normal hearing, including the final in-service hearing test conducted in August 1975.  Although his military occupational specialty as a combat cameraman may have placed him in areas where exposure to high risk noise was possible, his service treatment records did not include any evidence that such noise exposure resulted in permanent hearing loss.  Also, the Veteran's hearing at the time of the May 2011 VA examination revealed a degree of impairment which was not any worse than would be expected from the normal progression of hearing loss.  In addition, the degree and configuration of the hearing loss was not consistent with military acoustic trauma.

The examiner who provided the May 2011 and October 2012 opinions did not explicitly acknowledge and discuss the report of a continuity of hearing loss symptomatology in the years since service in formulating the opinions.  However, the Veteran did not claim continuity of symptoms since service when examined.  Moreover, any claim of a continuity of symptomatology is not deemed to be credible and an opinion based on such an inaccurate history would be inadequate.  See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).

The October 2012 opinion was otherwise based upon an examination of the Veteran and a review of his medical records and reported history and is accompanied by a specific rationale that is not inconsistent with the evidence of record.  Thus, this opinion is adequate and entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  Although the May 2011 opinion is of somewhat limited probative value because it is entirely based on a lack of objective evidence of hearing loss in the Veteran's service treatment records, it supports a conclusion that his hearing loss is not related to service.

The Veteran has expressed his belief that his current hearing loss is related to noise exposure in service.  However, as a lay person, he can only comment as to symptoms and immediately-observable relationships.  He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current hearing loss is related to noise exposure in service, as opposed to some other cause.  Rather, it would require medical expertise to evaluate the disability, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2) (2012).

There is no other evidence of a relationship between the Veteran's current hearing loss and service, and neither the Veteran nor his representative have alluded to the existence of any such evidence.  The Board does acknowledge that the Veteran's representative referenced medical literature in its October 2011 notice of disagreement pertaining to possible inadequacies of hearing tests conducted by the military.  However, the Veteran and his representative have not presented any specific challenge to the accuracy of the hearing tests conducted in service and have not identified any specific inadequacies.  Furthermore, generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case, does not provide competent evidence to satisfy the nexus element for an award of service connection.  See Sacks v. West, 11 Vet. App. 314 (1998).  In this case, no medical professional has specifically related any such information contained in medical literature to the Veteran.  
Also, as discussed above, the record fails to demonstrate any credible evidence of a continuity of symptomatology with respect to the Veteran's hearing loss.  Thus, the preponderance of the evidence is against a finding that the Veteran's current hearing loss is related to service, manifested in service, or manifested within a year after his March 1957 or June 1976 separations from service.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for bilateral hearing loss must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs