Citation Nr: 1318514 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-06 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968, including service in the Republic of Vietnam from October 1967 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, New Orleans. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in September 2008. A transcript is of record. This claim was previously before the Board in July 2009, September 2011 and November 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. The issue of service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The competent and probative evidence establishes that the Veteran's right ear hearing loss disability preexisted service and was aggravated beyond his natural course during the Veteran's service. 2. The preponderance of the evidence shows that the Veteran's left ear hearing loss disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, to include in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ear hearing loss disability have been met. §§ 1110, 1111, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. The criteria for service connection for a left ear hearing loss disability have not been met. §§ 1110, 1111, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 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 claimant 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 claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 of the VCAA apply to all five 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content, as to all claims. With respect to the Dingess requirements, a December 2011 letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment and VA treatment records. The Veteran had a VA examination in January 2013. Findings from the examination report are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims and no further assistance to develop evidence is required. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for service connection. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection will also be presumed for certain chronic diseases, including other organic diseases of the nervous system, i.e. sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). For 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 above 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 (2012). See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. The service treatment records show that at the Veteran's entrance examination, audiological testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 n/a 40 LEFT 30 25 20 n/a 10 The Veteran reported on a July 1966 medical history report that he had never had hearing loss. At the Veteran's September 1968 separation examination, audiological testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 n/a 20 LEFT 15 15 10 n/a 10 The Veteran reported on a July 1966 medical history report that he had never had hearing loss. The service treatment records do not show any complaints or treatment related to hearing loss. At April 2004 VA treatment the Veteran reported exposure to artillery fire and noise from big trucks while delivering supplies to bases in Vietnam for about a year. After service he continued to work around trucks and heavy equipment without hearing protection. On an audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 90 80 90 100 LEFT 50 50 60 60 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. The Veteran was diagnosed with severe to profound mixed hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear. A hearing aid was ordered for the left ear and the Veteran was given a referral to ear, nose and throat for the left ear due to the mixed nature of the hearing loss. At a June 2004 VA consultation, the Veteran reported having a malodorous discharge from the right ear every once in a while since his military service. On audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 90 70 90 100 LEFT 50 50 60 60 70 The Veteran had a mastoid CT scan in June 2004. The left temporal bone was normal and the right side had likely chronic inflammatory changes with cholesteatomatous formation and chronic inflammatory changes in the mastoid air cells. The Veteran had a VA audiological examination in July 2004 at which he reported hearing difficulty for approximately 30 years, with the right ear worse than the left. He also had recurrent ear infections in the right ear. The Veteran reported significant noise exposure from heavy equipment and artillery fire from 1966 to 1972 during military service. The Board notes herein that the Veteran's military service was from September 1966 to September 1968. The Veteran reported significant noise exposure from heavy equipment after service and no recreational noise exposure. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 85 75 80 90 LEFT 55 50 65 60 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed the Veteran with right ear severe mixed hearing loss and left ear moderate to severe sensorineural hearing loss. VA treatment records show that in July 2004 the Veteran underwent a right tympanoplasty, right middle ear exploration, right incudostapedial joint ossiculoplasty, and right T-tube placement. It was noted that he had right conductive hearing loss. The Veteran testified at the September 2008 hearing that he was exposed to fire from 155 mm. guns when he stayed overnight at firebases in Vietnam while on supply convoys. It would be difficult for him to hear the following day and hearing protection was not used. He drove a truck after service and sought treatment in 2003, when it was recommended that he use hearing aids. The Veteran had another VA audiological examination in March 2010. He reported bilateral hearing loss since service, with the right ear being worse. The examiner noted that the entrance examination from military service showed right ear hearing loss and that there was no decrease in hearing during service. The left ear had normal hearing and no decrease during service. The Veteran was exposed to 155 mm. cannon fire during service. After service he worked as a truck driver with exposure to "unmuffled" engines for 25 years. The Veteran said that he had not seen an ear, nose and throat physician since 2005. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 90 70 85 90 100 LEFT 40 45 60 60 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. Otoscopy showed clear ear canals and visible tympanic membranes. Tympanogram of the left ear was normal and the right ear had negative pressure consistent with mixed loss. The Veteran was diagnosed with severe to profound right sensorineural hearing loss and mild to severe left sensorineural hearing loss. The examiner wrote in a July 2010 examination report addendum that it was not likely that the sensorineural component of hearing loss in both ears was related to acoustic trauma in service. The Veteran reported significant civilian noise exposure, which was the more likely cause of hearing loss. Furthermore, it was unlikely that the occasional noise from 155 mm. howitzers without actually firing the guns would have affected the Veteran's hearing. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Probative value cannot be given to this opinion because it did not adequately consider the in-service complaints of hearing loss. The VA examiner reviewed the March 2010 testing again in January 2012 and diagnosed the Veteran with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. The examiner opined that it was not at least as likely as not that the hearing loss was caused by or was a result of events in military service. The rationale was that the hearing was within normal limits at separation from service. The examiner also felt that hearing loss existed prior to service but was not aggravated beyond its normal course during service. The rationale was the comparison of the September 1968 audiological testing to the July 1966 testing. At a VA ear examination in August 2012, the examiner noted that the Veteran had chronic suppurative otitis media, cholesteatoma, and right tympanic membrane perforation. The Veteran reported having drainage and ear infections in the right ear while in Vietnam, although he was not treated during service. He continued to have problems once he left the military, and he had some dizziness and right ear discharge. On examination the external ears and the ear canals were normal. Acoustic immittance, ipsilateral acoustic reflexes, and contralateral acoustic reflexes were abnormal on the right and normal on the left. The diagnosis was mixed hearing loss on the right and sensorineural hearing loss on the left. The Veteran wore hearing aids in both ears. The examiner felt that the Veteran's hearing loss was not at least as likely as not caused by or the result of an event in military service. However, the examiner also wrote that the sensorineural hearing loss was from noise exposure during military service. The rationale was that hearing was well within normal limits at separation. The examiner also felt that the Veteran's hearing loss existed prior to service and was not aggravated beyond its normal progression from military service. Probative value cannot be given to this opinion because it is not internally consistent. See Barr, supra. The Veteran had another VA examination in January 2013. On audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105 100 105 105 105 LEFT 60 65 75 70 75 Speech audiometry revealed speech recognition ability of 42 percent in the right ear and of 96 percent in the left ear. Contralateral acoustic reflexes were abnormal bilaterally. Acoustic immittance and ipsilateral acoustic reflexes were abnormal on the right and normal on the left. The Veteran was diagnosed with mixed hearing loss in the right ear and sensorineural hearing loss in the left ear. The examiner felt that it was not at least as likely as not that the hearing loss was caused by or a result an event in military service. The rationale was that it was unlikely that an occasional night being housed near where 155 mm. howitzers were being fired from would affect the Veteran's hearing. The Veteran reported many years of significant civilian noise exposure, such as working at a plywood plant, driving a truck with unmuffled engines, and working with chainsaws. Therefore, it was more likely that the sensorineural component of the Veteran's hearing loss was due to noise exposure following service. The examiner also felt that the hearing loss preexisted service in the right ear and did not preexist service in the left ear. The rationale was that the entrance examination showed normal hearing in the left ear and mild hearing loss at 4000 Hz in the right ear. The examiner felt that the right ear hearing loss was aggravated beyond its normal progression by military service. Right Ear Hearing Loss Disability In regards to the right ear hearing loss disability, the July 1966 entrance examination showed hearing loss because at 4000 Hz the auditory threshold was 40 decibels or greater. See 38 C.F.R. § 3.385. The January 2013 VA examiner felt that the right ear hearing loss was aggravated beyond its normal progression by military service. Therefore, the record shows that right ear hearing loss was noted at entry to service and does not clearly and unmistakably show that it was not aggravated beyond its normal course by service. Furthermore, the record clearly shows that the Veteran currently suffers from right ear hearing loss. Therefore, the criteria for service connection for a right ear hearing loss disability have been met. Left Ear Hearing Loss Disability In regards to left ear hearing loss, the Board concludes that service connection is not warranted. The post-service treatment and VA examination results show a left ear hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. Thus, a current disability is established. The Board has considered the Veteran's testimony concerning in-service noise exposure and his documented duty assignment. In giving due consideration to the circumstances of his service, noise exposure is conceded. 38 U.S.C.A. § 1154(a). The service treatment records do not show left ear hearing loss. The absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Here, the only evidence of a nexus between the current left ear hearing loss and military service is the Veteran's own lay contention. While the Veteran may be competent to report symptoms of decreased hearing acuity during or after service, the Board finds that his lay contention regarding the etiology of the current bilateral hearing loss is outweighed by the January 2013 VA examiner's opinion that the current left ear hearing loss is unlikely to be a result of military service. The Board finds that the January 2013 VA examiner's opinion is probative evidence against a nexus, as it was based on a review of the evidence in the claims folder. This opinion was also supported by a clear rationale based on the evidence, or lack thereof, in the service treatment records, as well as the Veteran's history as reported at the earlier VA examinations and treatment, as well as the clinical findings. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to this issue has been met and an additional examination to obtain another medical nexus opinion is unnecessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required); 38 C.F.R. § 3.159 (c)(4). The fact that the VA examiner's opinion was based, in part, on the fact that hearing acuity was clinically normal when the Veteran left service does not render the opinion inadequate because the examiner, as noted above, took into account the Veteran's lay statements, reviewed the available in-service and post-service medical records, and evaluated the post-service audiogram results. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (medical opinion is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). The record does not show that the left ear sensorineural hearing loss was manifest within a year of service. Therefore, service connection is not available on a presumptive basis. See 38 C.F.R. §§ 3.307(a), 3.309(a). The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim and that doctrine is thus, inapplicable. Accordingly, service connection for a left ear hearing loss disability is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a right ear hearing loss disability is granted. Service connection for a left ear hearing loss disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs