Citation Nr: 1317440	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  10-48 406	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


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

J. Schulman, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, had service from January 1958 to May 1962.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.
 
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In December 2010, VA received a print-out of an internet website called "Hearing Loss" from Mayoclinic.com.  The evidence was received prior to certification of the case to the Board, however in April 2013 VA received a waiver of RO original jurisdiction.  Hence the Board may properly consider the evidence in connection with the immediate appeal.


FINDINGS OF FACT

1.  The Veteran had exposure to noise in service.

2.  The Veteran did not experience chronic symptoms of hearing loss during service and did not have hearing loss at separation from service.

3.  Hearing loss did not manifest to a compensable degree within one year of separation from service and is not related to service.



CONCLUSION OF LAW

The criteria for establishing service connection for bilateral hearing loss have not been met.  38 U.S.C.A §§ 1101, 1111, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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 including medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 

This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO provided a VCAA notice letter to the Veteran in November 2009, prior to the initial adjudication of the claim.  The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO.  The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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.  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.  In this case the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates in November 2009.

Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 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.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010).  However, "[t]he duty to assist is not boundless in its scope" and "not all medical records . . . must be sought-only those that are relevant to the [V]eteran's claim." Golz at 1320, 21. 

Here service records have been obtained, as have records of private and VA treatment.  These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board.  The Veteran has indicated that he had no additional information or evidence to submit in support of his claim.

The Board also notes that, the Veteran was afforded a VA examination in October 2010, during which the examiner was provided the Veteran's claims file for review, took down the Veteran's history, considered private medical evidence, was a professional with the appropriate competency to comment on the Veteran's claimed disability, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record.  Neither the Veteran nor his representative has challenged the adequacy of the examination obtained.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2012).
 
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).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For these reasons, the Board finds that the duties to notify and assist the Veteran in this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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).

Service Connection for Bilateral Hearing Loss

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

Sensorineural hearing loss, which is an organic disease of the nervous system, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection.  38 C.F.R. § 3.303(b).    

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such a organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 

Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever).  See 38 C.F.R. § 3.159(a)(2). 

Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg.  Jandreau, 492 F.3d 1372, 1376-77.

Here, the Veteran is claiming entitlement to service connection for loss of hearing.  For the purposes of this claim, the threshold for normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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 Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

Before proceeding, the Board observes that VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO)-American National Standards Institute (ANSI). In the forgoing discussion, ASA units appear to the left and in parentheses, while ISO-ANSI units appear on the right.

The Veteran contends that acoustic trauma during service caused his current hearing loss.  Specifically, in a January 2010 statement he indicated that the work he performed during service included conducting maintenance on jet aircraft while the engines were operating.

The Veteran's service treatment records reflect that on enlistment examination in December 1957, his ears and ear drums were normal, and whispered voice hearing recognition was 15/15 in both ears.  The Veteran affirmatively denied any history of ear trouble or running ears.

Based on the Veteran's enlistment examination, the Board finds that the Veteran's hearing and ears were in sound condition at the time he entered service.  In June 1960, the Veteran underwent an audiological evaluation in which pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
(10) 25
(5) 15
(0) 10
(10) 20
(10) 15
(15) 25
LEFT
(5) 20
(0) 10
(0) 10
(15) 25
(10) 15
(15) 25

The evaluation report indicated that the Veteran "seldom or never" wore ear protection other than dry cotton during exposure to loud noise.  

A December 1961 initial flight examination showed the ears and ear drums to be normal.  He had whispered voice recognition of 15/15 in both ears and pure tone thresholds as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
(0) 15
(0) 10
(0) 10
(0) 10
(5) 10
(0) 10
LEFT
(0) 15
(0) 10
(0) 10
(0) 10
(0) 5
(0) 10

The Veteran again denied any history of ear trouble or running ears.

On separation examination in May 1962, the Veteran's ears and ear drums were normal, and he denied any history or current ear trouble or running ears.  Audiological evaluation revealed pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
RIGHT
(0) 15
(0) 10
(0) 10
LEFT
(0) 15
(0) 10
(0) 10

Based on the foregoing, the Board finds that the Veteran's did not have a chronic hearing loss disability during service.  While audiometric testing in June 1960 showed pure tone thresholds at 500 and 600 hertz in the right ear and at 3000 and 6000 hertz in the left ear were 25 decibels, indicting some hearing impairment, audiometric testing in December 1961 and on separation examination in May 1962 showed essentially normal hearing.  See Hensley, 5 Vet. App. at 157.

This does not in itself preclude a grant of service connection.  Again, service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d).  Nevertheless, after a full review of the record, the Board finds that the weight of the lay and medical evidence does not demonstrate that hearing loss had its onset in service, was manifest to a compensable degree within on year of separation from service, and is not related to service for the reasons discussed below.

Following separation in May 1962, an August 2009 primary care outpatient treatment record indicates that in August 2009 the Veteran reported hearing loss.  He stated that hearing loss had been present since 2006 but that he believed hearing loss began while working on jet aircraft during his service.  A physical evaluation revealed the external ear canals to be patent and without tenderness with no injection or effusion of the tympanic membrane.  An assessment of hearing loss was given.  On audiological evaluation in September 2009 pure tone thresholds, in decibels, were as follows:


		HERTZ

500
1000
2000
3000
4000
RIGHT
20
25
50
70
80
LEFT
20
15
40
70
80

The Veteran underwent a VA examination in October 2010 during which he informed the examiner that while conducting communications and navigations repair on jet aircraft during service, he was sometimes provided hearing protection to wear.  He denied any post-service occupational noise exposure, however he endorsed recreational hunting and target shooting and stated that he wore hearing protection while target shooting.  On audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
35
70
70
LEFT
5
10
30
65
70

Puretone threshold average on the right side was 45, and on the left side was 43.7.  Speech audiometry using the Maryland CNC word list was 96 percent in the right ear and 96 percent in the left ear.  Tympanometry revealed normal middle ear function bilaterally, and otoscopy was unremarkable bilaterally.  The diagnosis was bilateral high frequency sensorineural hearing loss.  The examiner went on to recognize the Veteran's in-service noise exposure, however she concluded that in light of the Veteran's in-service audiograms, the Veteran's current hearing loss was not caused by or a result of military service.

The Veteran and his representative have repeatedly contended that the Veteran's in-service noise exposure, including to jet aircraft, caused his current hearing loss disability.  In considering the Veteran's statements to this effect, the Board notes that the Veteran's in-service Military Occupational Specialty, which included working on communication and navigation systems, has been recognized by VA as one in which exposure to hazardous noise was highly probable.  Thus the Board finds that the Veteran had in-service exposure to such noises.  However, exposure to loud noise is not dispositive.

While hearing loss is capable of lay observation, Layno, 6 Vet. App. 465, the cause of hearing loss is a more complex medical determination and not capable of lay observation.  Jandreau 492 F.3d 1372.  Accordingly the Veteran's statements averring to the etiology of his hearing loss are not competent because making such a connection would require specialized medical knowledge regarding differing causes of hearing loss and the medical processes which cause trauma to result in hearing impairment.  The Veteran has not been shown to have such specialized knowledge and thus his statements linking service with hearing loss are of no probative value.

Of great probative value are normal separation examination and the conclusions reached by the VA examiner in October 2010 who, following an examination applied specialized medical training to conclude that the Veteran's hearing loss disability was not caused by or a result of military service.

The Board also considers the credibility of the Veteran's otherwise competent statements.  Again, service treatment records do not reflect in-service complaints referable to hearing loss.  Although the Veteran had one in-service examination showing reduced hearing in June 1960, his hearing was normal at separation.  Furthermore, the Veteran's recent reports have been inconsistent regarding the date of his hearing loss onset.  Specifically, in August 2009 he reported to a medical professional that symptoms began in 2006, while he now avers that his hearing loss began in service.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

The Board finds that the Veteran's claims of in-service onset are not credible.  Specifically, this finding is made based on inconsistencies in  the Veteran's statements regarding in-service and post-service onset, and objective audiometric data showing that hearing was normal at separation.  In contrast, when the Veteran thereafter presented his account on in-service hearing loss onset, he was seeking VA benefits rather than medical treatment.  The Board is not free to ignore assertions as to any matter upon which a veteran is competent to offer an opinion, see Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony), however for the foregoing reasons such assertions are found to be not credible.

Far more probative is the Veteran's August 2009 statement to a health car provider that hearing loss had been present only since 2006.  Because the Veteran was then seeking only medical treatment, and not compensation, it seems likely that he would report events carefully and accurately. Statements made to a healthcare provider for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care.  As the Veteran's statement of a 2006 on-set is both competent and credible, the Board finds that hearing loss did not manifest in-service, within one year of service or until many years after service.

The Veteran sent VA an article from a Mayo Clinic internet website entitled "Hearing Loss."  The article states that the primary factors contributing to hearing loss are heredity and chronic exposure to loud noises.  Medical treatise evidence can, in some circumstances, constitute competent medical evidence.  See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses).  However, generic information from a medical journal or treatise is "general and inconclusive" to establish a medical nexus to a disease or injury.  Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)).  A medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships.  Sacks v. West, 316-17.

The Board has considered the document submitted by the Veteran, including the fact that it indicates that sound from a jet engine can cause injury.  Nonetheless, in light of the lack of an interpreting opinion of a medical professional, the article is of no probative value in the Veteran's specific case. 

In sum, the weight of the evidence establishes that bilateral hearing loss first developed decades after service and that it is unrelated to service.  Accordingly, the preponderance of the evidence is against the claim, and there is no doubt to be resolved.  38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs