Citation Nr: 1316992	
Decision Date: 05/23/13    Archive Date: 05/31/13

DOCKET NO.  05-39 574	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for right ear hearing loss. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel



INTRODUCTION

The Veteran had active service from October 2001 to October 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama.

This matter was previously before the Board in December 2009 at which time it was remanded for additional development.  In a June 2011 decision, the Board, in pertinent part, denied service connection for right ear hearing loss.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). 

While the case was pending at the Court, the parties filed a Joint Motion for Remand, requesting that the portion of the June 2011 Board decision, which denied service connection for right ear hearing loss, be vacated and remanded for additional action.  In January 2012, the Court issued an Order granting the Joint Motion, vacating and remanding the matter of service connection for right ear hearing loss to the Board for compliance with the specified directives.

Subsequently, in April 2012 and October 2012, the Board remanded this appeal for further development.  The case has now been returned to the Board for appellate disposition.  As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105   (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
FINDING OF FACT

The Veteran's sensorineural hearing loss of the right ear was not manifested during his active service, is not shown to be causally or etiologically related to his active service, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of his separation from service.


CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING 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, the evidence submitted by the Veteran or on his behalf.  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 should 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). 

Duty to Notify and Assist

VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and, (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

A letter sent to the Veteran in November 2004 addressed all notice elements listed under 38 C.F.R. § 3.159(b)(1) and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  However, even though the Veteran was not provided with the Dingess requirements in this letter (specifically, how disability ratings and effective dates are assigned), the claim was subsequently readjudicated after the Veteran was provided Dingess notice in March 2006.  Also, no prejudice has been alleged, and none is apparent from the record.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect).  In any event, because the claim is being denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the Veteran.  See Dingess/Hartman, 19 Vet. App. at 484. 

Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content.  Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 
Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained copies of the Veteran's service treatment and personnel records, as well as his pertinent post-service Air Force Base and VA outpatient treatment records.  The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration for the disorder currently on appeal.  Therefore, the Board does not need to make an attempt to obtain these records.  The Veteran received VA medical examinations for his claim in January 2010 and May 2012.  VA medical opinions were also obtained in January 2010, July 2012, and November 2012.  The examinations involved reviews of the claims file and thorough examinations of the Veteran.  The medical opinions are supported by sufficient rationale.  Therefore, the Board finds that the VA examinations and medical opinions are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  

Additionally, the Board notes that neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

The Board is also satisfied as to substantial compliance with its December 2009, April 2012, and October 2012 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  This included scheduling the Veteran for a VA examination and medical opinion.  The Veteran received VA medical examinations for his claim in January 2010 and May 2012.  VA medical opinions were also obtained in January 2010, July 2012, and November 2012.  The remand also included obtaining the Veteran's pertinent outpatient treatment records, which were obtained and associated with the claims file.  Finally, the remand included readjudicating the claim, which was accomplished in the December 2010, August 2012, and January 2013 Supplemental Statements of the Case.  Thus, the Board finds that there has been substantial compliance with its remand directives.  Id.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

Service Connection

The Veteran contends that he is entitled to service connection for hearing loss in the right ear.  

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

As noted above, the first element of direct service connection requires medical evidence of a current disorder.  Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or, when the 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.  Here, a current diagnosis has been established.  On VA examination in January 2010, speech audiometry testing revealed a speech recognition ability of 92 percent in the right ear using the Maryland CNC Test.  Additionally, at the May 2012 VA examination, the VA examiner diagnosed the Veteran with sensorineural hearing loss in the right ear in the frequencies of 6000 Hz or higher.  Thus, the Veteran has satisfied the first element of service connection.  38 C.F.R. § 3.385.  

As stated above, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease.  

Here, according to the Veteran's service treatment records, audiometric testing in June 2001, prior to his entry into the active service, revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
5
15
15

His service treatment records do not contain any complaints of or treatment for right ear hearing loss, or any documentation of an injury to the right ear.  

An in-service October 2002 audiological evaluation revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
5
15
20

An in-service March 2003 audiological evaluation revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
-5
5
15
15

An in-service September 2003 audiological evaluation revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
-5
5
20
20

Audiometric testing during the Veteran's October 2003 military audiological separation examination revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
-5
5
20
20

The Veteran's active service ended in October 2003.

In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court held that, even though disabling hearing loss may not have been demonstrated at the military separation, a Veteran may still establish service connection for a current hearing loss disability by showing he now satisfies the threshold minimum requirements of § 3.385 and by submitting evidence that his current disability is related to his active military service.  See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

Post-service, audiometric testing during an August 2004 audiological examination for the Reserves revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
15
20

In September 2004, the Veteran underwent a medical examination prior to entering the Air Force Reserves.  Audiometric testing revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
15
20

Although the left ear was diagnosed with high frequency hearing loss at the September 2004 examination, the right ear was not diagnosed as such. 

The Veteran was afforded a VA audiological examination in November 2004, where he reported hearing loss in his right ear beginning in 2002 after diving.  The Veteran stated he developed ear infections and fluid collection in his ears.  The Board notes that the examiner did not review the evidence of record prior to this examination.  Audiometric testing revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
20
15

Speech audiometry testing revealed a speech recognition ability of 100 percent in the right ear at the November 2004 examination.  Upon examination, the examiner stated the test results indicated the hearing in the right ear was within normal limits. 

In January 2010, the Veteran was afforded a new VA examination pursuant to the December 2010 Board remand.  The Veteran reported that recurrent ear infections contributed to his hearing loss.  He stated his right ear hearing loss started in 2002 and the last infection was in 2004.  The Veteran indicated that he had loud noise exposure while working with submarines and jets during his military service.  Audiometric testing revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
20
15
20
16

Speech audiometry testing revealed a speech recognition ability of 92 percent in the right ear at the January 2010 examination.  The examiner reported that the test results indicated the Veteran had normal hearing in the right ear from 250 Hz to 4000 Hz, but then had "sloping to a mild" sensorineural hearing loss.  Upon examination and review of the evidence of record, the examiner opined that, "[The] Veteran's right ear has remained normal throughout this military career and continues to be normal for rating purposes today, therefore, no hearing loss was acquired in his right ear while in military service."

The Veteran was afforded another VA audiological examination in May 2012.  Audiometric testing revealed the following pure tone threshold levels, in decibels, in the indicated frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
5
20

Speech audiometry testing revealed a speech recognition ability of 96 percent in the right ear at the May 2012 examination.  The VA examiner diagnosed the Veteran with sensorineural hearing loss in the right ear in the frequencies of 6000 Hz or higher, but found that the Veteran did not have any hearing loss in the frequency range of 500 Hz to 4000 Hz.  The examiner did not provide a medical nexus opinion regarding the right ear.

A VA addendum medical opinion was obtained in July 2012.  The opinion was unrelated to the Veteran's right ear.

Another VA addendum medical opinion was obtained in November 2012.  The VA examiner, who examined the Veteran in May 2012, reviewed the claims file prior to providing her medical opinion.  The examiner found that the Veteran's right ear hearing loss was not damaged or aggravated by the military noise exposure during his active military service.  The examiner reasoned that there was no significant change in the hearing of the right ear while the Veteran was on active duty from October 2001 to October 2003.  The examiner also pointed out that the Veteran's hearing was within normal limits at his service induction and separation examinations.  The examiner noted the Veteran's speech discrimination score of 92 percent at his January 2010 VA examination; however, the examiner found that the Veteran's score improved at his May 2012 VA examination (to 96 percent).  The examiner stated that it is not unusual for speech discrimination scores to fluctuate from examination to examination.  The examiner determined that the Veteran's May 2012 VA speech discrimination score was accurate and verified that the Veteran had hearing within normal limits in the right ear on that date.  Thus, in summary, the examiner found that the Veteran currently had hearing within normal limits in his right ear, and his previous hearing loss in the right ear was not due to his active service.

As previously mentioned, the third element of direct service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury.  Here, the only medical nexus opinions of record are negative.  The VA examiners clearly reviewed the service treatment records and other evidence in the claims file.  The January 2010 and November 2012 VA examiners, in particular, provided negative nexus medical opinions that are supported by and consistent with the evidence of record.  There is no positive evidence to the contrary of these opinions in the claims file.  The treatment records do not provide contrary evidence.  
The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight.  For all of these reasons, service connection is not warranted.

The Veteran reports continuous symptomatology since his active service.  However, the Veteran's contentions are not supported by the medical evidence of record.  As stated above, the earliest in-service or post-service medical evidence showing hearing loss in the right ear is dated from January 2010, almost seven years after the Veteran's separation in October 2003.  Further, the service treatment records do not show that the Veteran developed a chronic sensorineural hearing loss disorder in the right ear during his active military service.  The service treatment records do not document any right ear injury, or complaints of or treatment for right ear hearing loss.  Further, the Veteran's separation examination did not document any right ear hearing loss.  The evidence of record does not document continuity of symptomatology during and since the Veteran's active service.  Thus, the Board finds that the medical evidence does not establish a "chronic disorder."  38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331.  The Veteran's service connection claim cannot be granted on this theory of entitlement.

Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for sensorineural hearing loss of the right ear.  As stated above, the earliest post-service medical treatment record documenting sensorineural hearing loss of the right ear is dated from January 2010, and the Veteran was separated from active duty in October 2003.  No diagnosis of sensorineural hearing loss of the right ear was made within one year of the Veteran's discharge.  Thus, the presumption for service connection for chronic diseases does not apply.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).

In reaching this decision, the Board has considered the Veteran's arguments in support of his claim.  The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active service.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder 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.  The relevance of lay evidence is not limited to the third situation, but extends to the first two as well.  Whether lay evidence is competent and sufficient in a particular case is a fact issue.  Id.

Although the Veteran is competent to report that he injured his right ear during his active service, which resulted in his current right ear hearing loss, the Board must still weigh his lay statements against the medical evidence of record.  See Layno v. Brown, 6 Vet. App. 465 (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")).  In making this credibility determination, the Board finds the Veteran's statements concerning the etiology of his right ear hearing loss to be outweighed by the medical evidence of record.  His service treatment records make no reference to a right ear injury, and do not contain any complaints of or treatment for right ear hearing loss.  Additionally, his hearing in his right ear was normal at the time of his October 2003 separation examination.  See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

It is important to point out that the Board does not find that the Veteran's lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence.  See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").  Rather, the Veteran's statements are found to be of limited probative value because they are inconsistent with the evidence of record, which fails to show a right ear injury or hearing loss during his active service, which fails to show right ear hearing loss (in accordance with the VA regulations) until 2010 (almost seven years after his separation from the active duty in October 2003), and which contains only negative nexus medical opinions.

For the reasons set forth above, the Board finds that the Veteran's lay statements that his right ear hearing loss symptoms have been present since his active service are of limited probative value.  Therefore, these statements do not support a grant of service connection or a determination that further development of the medical evidence is required.  All other evidence of record, aside from the Veteran's statements in support of this current claim, is unfavorable to the claim for service connection for right ear hearing loss.  

The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claim of entitlement to service connection for right ear hearing loss is not warranted.


ORDER

Service connection for right ear hearing loss is denied. 




____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs