Citation Nr: 1318692 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-46 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and his sister ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to November 1969. This matter is before the Board of Veterans' Appeal (Board) on appeal from an April 2009 rating decision by the Portland, Oregon Regional Office (RO) of the Department of Veterans Affairs. The appeal was previously remanded by the Board in November 2011. The Veteran testified before the undersigned Veterans Law Judge in March 2012; a transcript of that proceeding has been associated with the claims file. The Board notes that the appeal originally encompassed a claim of entitlement to service connection for tinnitus; however, that claim was granted by the Board in November 2012, and is, therefore, no longer on appeal. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. The records contained therein have been reviewed by the Board in conjunction with this appeal. FINDINGS OF FACT A hearing loss disability did not manifest in service and is unrelated to service. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran was sent a letter in February 2009, prior to the initial adjudication, which provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused 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. Further, the Veteran was afforded a VA audiological evaluations in March 2009 and March 2013 to address the medical questions raised in this appeal. The Board finds that the March 2013 VA evaluation, in particular, is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it described the claimed disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Board accordingly finds no reason to remand for further examination. The Veteran was also provided with an opportunity to set forth his contentions during a hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that hearing the undersigned set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for a chronic disease, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is an organic disease of the nervous system. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a current "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Facts and Analysis The Veteran contends that his hearing loss is related to service. Specifically, he asserts that he sustained acoustic trauma while serving as an instruments instructor/trainer in the Navy. During his hearing before the undersigned, he described experiencing ear pain and pressure in association with his duties maintaining and operating the low pressure chamber. He also described being exposed to constant explosive charges (without the use of hearing protection) in this capacity. Review of his DD Form 214 confirms that his military occupational specialty (MOS) was "Instructor-Instruments." As an initial matter, VA audiology examinations dated in March 2009 and March 2013 confirm a current bilateral sensorineural hearing loss disability as defined under 38 C.F.R. § 3.385. As such, the first element of service connection claim ("present disability") has been established in this case. See Shedden, supra. With respect to the second element of a service connection claim, that of in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records contain no complaint, finding, history, treatment, or diagnosis of bilateral hearing loss or related ear problems. In particular, the September 1965 enlistment examination includes an audiogram in units set forth by the American Standards Association (ASA). Standards set forth by the International Standards Organization (ISO) are the current method (and after October 31, 1967) for measuring hearing loss and used by VA to determine hearing loss disability under 38 C.F.R. § 3.385. When converted to ISO units the thresholds in decibels at: 500, 1000, 2000, 3000, and 4000 Hz were 10, 5, 5, 5 and 10, respectively, in the right ear; and 20, 15, 15, 25, and 0 in the left ear. Clinical evaluation of the ears was normal and the Veteran was deemed as fit for duty. Likewise, the September 1969 extension of enlistment examination included an audiogram which showed the thresholds in decibels at: 500, 1000, 2000, 3000, and 4000 Hz were 20, 15, 10, 20, and 15, respectively, in the right ear; and 15, 5, 5, 5, and 5 in the left ear. Again, clinical evaluation of the ears was normal. Lastly, the September 1969 extension of enlistment examination included an audiogram which showed the thresholds in decibels at: 500, 1000, 2000, 3000, and 4000 Hz were 5, 5, 5, 5, and 5, in the right ear; and 10, 5, 0, 5, and 0 in the left ear. Clinical evaluation of the ears was also normal. While no hearing loss related disease or injury is shown by the service treatment records above, the Board notes that it previously granted a claim of service connection for tinnitus based, in part, on conceded in-service noise exposure. See November 2012. As such, the Board again finds the Veteran's reports of acoustic trauma, ear pain/pressure, and other related symptoms during service, to be both competent and credible; this is especially so in light of his MOS and related duties. As such, the in-service injury requirement is satisfied in this case, despite the absence of complaints or treatment in the service treatment records. See Shedden, supra. The remaining question for consideration by the Board is whether a causal relationship between the present hearing loss disability and in-service acoustic trauma exists. Following service, bilateral hearing loss was first documented in March 2009, which is well beyond the one year presumptive period following separation from service in September 1969 for manifestation of sensorineural hearing loss as a chronic disease under 38 U.S.C.A. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. There are no other private or VA treatment records prior to that date demonstrating hearing loss complaints or treatment. The Veteran was also afforded a VA audiological examination in March 2009. He reported that he was "unsure" if he had any hearing loss, but endorsed "an occasional mis-hearing of words." The examiner noted the Veteran's in-service duties in the pressure chamber and exposure to shell firing. The Veteran denied post-service occupational and recreational noise exposure. As noted above, the March 2009 audiological findings confirmed a bilateral sensorineural hearing loss disability consistent with the criteria set forth under 38 C.F.R. § 3.385. The examiner opined that the hearing loss was less likely as not caused by or a result of acoustic trauma during service. He reasoned that the hearing evaluations at entry and separation were within normal limits, and that no significant threshold shifts were shown by separation. It was also noted that the Veteran reported that he had only recently started to notice any hearing related difficulties. The Veteran testified before the undersigned in March 2012. He described his in-service duties and related noise exposure, as extensively noted above. He stated that he did not seek treatment for hearing loss until the time of his VA examination in 2009 and that it had really only been "in the last year or two that I've really discerned much hearing loss." See Hearing Transcript, p. 10. The Veteran did endorse some post-service recreational noise exposure (without protection) when hunting. A review of the Veteran's Virtual VA claims file reflects continued treatment for bilateral hearing loss from 2009 to the present. A November 2012 otoscopic examination revealed findings consistent with the 2009 VA examination, and no abnormalities (other than sensorineural hearing loss) of the ears were noted. The Veteran underwent a second VA audiolgoical examination in March 2013. He reported military noise exposure while working in low pressure chambers (along with ear pain and pressure) and being next to ejection seat training and jet engines. He stated that he believed the changes in pressure caused injury to his ears. The Veteran was unable to recall when he first notice hearing difficulties. He also reported post-service occupational noise exposure while being in manufacturing plants as a real estate appraiser, as well as recreational noise exposure with hunting, chain saw use, power tool use, and lawn mowers. He stated that hearing protection was used in connection with these activities. The examiner reviewed the claims file, considered the Veteran's statement and reported history noted above, and provided an opinion that hearing loss was less likely than not caused by or a result of an event in service. He reasoned that entrance and exit examinations showed grossly normal hearing with no significant threshold shifts; moreover, there was no evidence of high frequency hearing loss at separation to indicate that he suffered acoustic trauma. There was also no evidence that the Veteran's ears were damaged as a result of air pressure changes. The examiner explained that it would be typical to feel pain with pressure changes on the ear drum and middle ear cavity; however, there was no evidence that any permanent damage occurred as a result of these pressure changes. In so finding, he noted that the current and prior VA examinations (to include a November 2012 VA otoscopic examination) revealed normal middle ear pressure and ruled out any middle ear pathology. Based on the foregoing, the examiner concluded that the Veteran's hearing loss was most likely the result of presbycusis, and post-service occupational and recreational noise exposure as reported by the Veteran. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for both left and right ear hearing loss. First, the Board notes that the only competent medical evidence of record is against the Veteran's claim for service connection. In this regard, both the March 2009 and March 2013 VA examiners concluded that the Veteran's hearing loss was not related to in-service noise exposure. The Board finds the March 2013 VA examiner's opinion to be particularly probative as to the issue of nexus since he provided a rationale in the medical report and in the conclusion, including citing relevant findings from the Veteran's service records and his reported history. In addition, the examiner, a competent medical professional, considered the nature of the bilateral hearing loss disability, the Veteran's report of in-service noise exposure without hearing protection, the post-service noise exposure, and his relevant longitudinal complaints (or lack thereof), and proffered an opinion which concluded that bilateral hearing loss was less likely due to service, and more likely due to presbycusis and post-service occupational and recreational noise exposure as reported by the Veteran. For these reasons, the March 2013 opinion, which is uncontroverted by the competent evidence of record, is probative and persuasive evidence against the claim for the bilateral hearing loss disability. As such, the medical nexus requirement has not been met in this case. The Veteran believes that his hearing loss was caused by his active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. As noted above, service connection may also be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In this case, there is a remarkable lack of credible evidence of pathology and/or symptomatology during service, and for many years following separation. Indeed, service treatment records are negative for hearing loss complaints, treatment, and/or diagnoses, and the earliest post-service diagnosis hearing loss was during the March 2009 VA examination, nearly 40 years after separation from service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in this case, the Veteran has not indicated any other symptoms of, or treatment for hearing problems immediately following service, or in the many years leading up to his 2008 claim for service connection. In fact, based on his own hearing testimony and statements during the March 2009 and March 2013 VA audiological examinations, not even the Veteran himself has alleged continuous hearing loss symptomatology since service. Rather, he has consistently endorsed only recent onset of hearing loss symptoms. Thus, as continuity of symptomatology has not been established in this case, the Board is unable to grant the Veteran's claim pursuant to the provisions of 38 C.F.R. § 3.303(b). In sum, there is no diagnosis of sensorineural hearing loss during service; the medical evidence of record is clear that the Veteran had normal hearing during service, including upon separation examination; and there is also no evidence that the Veteran had a diagnosis of sensorineural hearing loss within the first year of separation from service. The earliest diagnosis of sensorineural hearing loss is in 2009, almost four decades after the Veteran separated from service. The Veteran has consistently stated that he had hearing loss with only recent onset. He has never claimed it dated from service to the present and he never sought treatment or evaluation until 2008 (the date of his claim). Moreover, the March 2009 and March 2013 VA opinions, the latter of which has been deemed highly probative, concluded that the Veteran's hearing loss was not related to service. Absent competent and reliable lay or medical evidence relating hearing loss to service, and in consideration of the VA opinion discussed above, the Board concludes that the claims of entitlement to service connection for hearing loss must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hearing loss is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs