Citation Nr: 1317335 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-37 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1993 to February 1999 and October 2001 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for gastroesophageal reflux disease, assigning a 10 percent evaluation, sinusitis, assigning a noncompensable evaluation, duodenitis and gastritis, assigning a noncompensable evaluation, and a granuloma of the right lobe of the lung, assigning a noncompensable evaluation, all effective June 14, 2007; and denied service connection for bilateral hearing loss, tinnitus, conjunctivitis, degenerative disc disease of the thoracolumbar spine, residuals of a sprain of the left ankle, and a right ankle condition. In March 2008, the Veteran submitted a notice of disagreement with the denials of service connection for hearing loss, tinnitus, the bilateral ankles, and conjunctivitis. She subsequently perfected her appeal in December 2008. A March 2009 rating decision from the San Diego RO granted service connection for tinnitus, assigning a 10 percent evaluation effective June 14, 2007. This grant of service connection is considered a full grant of the benefits on appeal for this claim. As such, the claim of entitlement to service connection for tinnitus is not before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). While the Veteran did request a Travel Board hearing on her December 2008 VA Form 9, in a subsequent communication received in April 2009, her representative withdrew the request for a Board hearing on her behalf. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). In April 2010, the Board denied the Veteran's claims of entitlement to service connection for a right ankle disability, a left ankle disability, and conjunctivitis, and remanded her claim of entitlement to service connection for bilateral hearing loss. In February 2012, the Board again remanded the Veteran's claim for service connection for bilateral hearing loss to the Appeals Management Center (AMC) for further evidentiary development, including attempting to obtain service treatment records from her second period of active duty (October 2001 to May 2002) and obtaining an addendum medical opinion. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC attempted to obtain treatment records from the Veteran's second period of service. The AMC informed the Veteran of its unsuccessful attempts in a June 2012 Memorandum of Unavailability of Federal Records. The AMC also obtained an addendum medical opinion in May 2012. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT The Veteran has not had a hearing loss disability for VA purposes at any time from the time contemporaneous to when she filed her claim of entitlement to service connection for hearing loss to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 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). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). A letter sent to the Veteran in August 2007 fully satisfied the duty to notify provisions. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records from her first period of service and VA examination reports are associated with the claims file. Private treatment records have been obtained to the extent possible. VA was unable to obtain service treatment records from the Veteran's second period of active duty. However, as the claim is being denied for lack of current disability not lack of in-service injury, as discussed in detail below, these records could not help to substantiate her claim. Accordingly, the Board finds that VA has fulfilled its duty to obtain all relevant records. The Veteran underwent VA examinations to evaluate her claimed hearing loss in January 2009 and May 2010 with additional opinions obtained in May 2012 and January 2013. The opinions involved a review of the claims file, including the examination reports, and were supported by sufficient rationale. Therefore, the Board finds that the examinations and opinions of record 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). Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. 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). II. Merits of the Claim The Veteran contends that she has a hearing loss disability as a result of military service. She reports that she has difficulty hearing and that he believes that this is related to in-service noise exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purpose of applying the laws administered by the 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 (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2012). A review of the medical evidence of record does not show the Veteran has a current hearing loss disability for VA purposes in either ear. Specifically, the Veteran was afforded VA audiological examinations with audiometric testing in May 2010 and January 2009. The most recent audiogram, performed in conjunction with the May 2010 VA examination, showed that auditory thresholds were less than 40 dB at all of the above-referenced frequencies and that audio thresholds greater than 26 dB were not measured for three or more of those frequencies for either ear. Additionally, the reported Maryland CNC Test score of 100 percent for both ears did not meet the VA definition of a hearing loss disability. Similarly, the January 2009 VA examination audiogram did not show an auditory threshold of 40 dB or higher at any of the above-referenced frequencies or auditory thresholds of 26 dB or greater for at least three of the above-referenced frequencies. The reported Maryland CNC Test scores were again 100 percent. None of these values meet the VA definition of a hearing loss disability. The Veteran submitted a November 2008 private audiogram that appeared to show a hearing loss disability in both ears for VA purposes. As this was contradictory to the subsequent findings in the VA examinations, the Board obtained a medical opinion from the Veterans Health Administration (VHA) in January 2013 to determine whether the Veteran had a hearing loss disability for VA purposes at any point throughout the appeals period. The VHA audiologist stated that the private audiogram showed a period of hearing loss for VA purposes, but then went on to indicate that such a finding did not constitute a diagnosis of a hearing loss disability. Rather, he explained that sensorineural hearing loss is not a condition that resolves itself. In light of the two audiograms showing better hearing acuity and no hearing loss disability following the November 2008 private audiogram, the audiologist explained that testing conditions, equipment, and/or a transient medical condition (such as sinusitis or cerumen in the ear) could have contributed to the hearing loss shown in November 2008. Notwithstanding the statement that the November 2008 audiogram showed hearing loss for VA purposes, the VHA audiologist's opinion as a whole concludes that the November 2008 results were invalid. Most significant in this regard is the VHA audiologist's statement that "[s]ensorineural hearing loss is not a condition that tends to resolve itself so most likely the test conditions, equipment, etc, could have contributed to an invalid test in 2008." Hence, the November 2008 examination is of little probative value as to the existence of a hearing loss disability for VA purposes at any time contemporaneous to the Veteran's claim. More probative are the findings of normal hearing for VA purposes and the opinion provided in January 2013. The Board has also considered the Veteran's contentions that she has hearing loss that rises to the level of a disability for VA purposes. However, the Board finds that her opinion is not competent evidence in this regard because she has not demonstrated the medical expertise needed to render an opinion on the measured level of her reported hearing loss or the validity of the November 2008 private audiogram. Although it is error to categorically reject a non-expert medical opinion, not all medical questions are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a non-expert (a layperson) is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In Jandreau, the Federal Circuit stated 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." See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together leads the Board to the conclusion that whether a non-expert diagnosis is competent evidence depends on the complexity of the particular question and whether or not a diagnosis could be rendered based on personal observation. In this case, the Board finds that a diagnosis cannot be rendered based solely on personal observation. While the Veteran is certainly competent to report that she has experienced a decrease in her hearing acuity, she is not competent to provide evidence that her perceived hearing loss meets the criteria for a hearing loss disability; i.e., certain audiometric and speech recognition test results, for VA purposes. Moreover, she is not competent to opine on the accuracy or validity of particular audiogram findings, such as the November 2008 private audiogram. This the Board concludes from the January 2013 VHA opinion explaining that fluctuations in hearing acuity can be caused by other factors. Her assertions are therefore not competent evidence of a hearing loss disability for VA purposes. Given the medical opinion evidence provided by medical professionals in this case, as already discussed, the Board finds that the preponderance of evidence is against a finding that the Veteran has experienced hearing loss for VA purposes at any time from that contemporaneous to when she filed her claim to the present. The present disability element of a service connection claim means that the disability for which service connection is sought must have existed at some time during the claim and appeal process. See McLain v. Nicholson, 21 Vet. App. 319, 321 (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present when the claim is adjudicated). Recently, the Veterans Court has held as follows: [W]hen the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, No. 11-3272,---Vet. App. ----, No. 11-3272, 2013 WL 1907369 (May 9, 2013) at 5. Here, the preponderance of evidence is against a finding that a hearing loss disability for VA compensation purposes existed at any time since she filed her claim, to include within a meaningful time prior to when she filed her claim. That she was exposed to loud noise during service is insufficient to establish that she has a present disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because the weight of the evidence is against a finding that the present disability element of her claim has been met, the appeal must be denied. There is no reasonable doubt to be resolved in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JAMES G. REINHART Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs