Citation Nr: 1319195	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  09-50 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss, to include central auditory processing disorder.  

2. Entitlement to service connection for ear disease manifested by hearing loss, balance problems, vertigo, headaches, and nausea, to include Meniere's disease.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from May 1977 to September 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The rating decision denied service connection for bilateral hearing loss to include central auditory processing disorder.  

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from January 2013 to March 2013.  The RO has not reviewed them.  However, none of the records are pertinent to his claim for service connection for hearing loss.  Therefore there is no prejudice to the Veteran in the Board's adjudication of claim. 

The Veteran testified at a hearing in November 2011 before the undersigned.  A copy of the transcript has been associated with the claims file.  

In April 2013, the Veteran submitted additional evidence and waived his right to have it initially considered by the RO.  38 C.F.R. §§ 20.800, 20.1304(c) (2012).

In June 2012 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board.  

A petition to reopen a claim for service connection for a back disability been raised by the record in the Veteran's April 2013 statement, but it 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.  

The Board has recharacterized the issues as shown on the title page of this decision as it appears, as noted in the Board's remand, that the Veteran's claimed hearing loss may be due to pathology other than acoustic trauma, such as Meniere's disease.  See, e.g., 38 C.F.R. § 4.87, Diagnostic Code 6205 (2012).  However, that aspect of the Veteran's hearing loss claim warrants additional development.  In this regard, the Board observes that the United States Court of Appeals for Veterans Claims (Court) held that a claimant's identification of the benefit sought does not require any technical precision.  See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.")  A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2012).  The paramount need is to consider his claim in the context of his reported symptoms, not just on the basis of specific diagnoses.  Thus, the issue of entitlement to service connection for ear disease manifested by hearing loss, balance problems, vertigo, headaches, and nausea, to include Meniere's disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The preponderance of the evidence reflects that the Veteran does not have bilateral hearing loss due to any incident of his active duty service. 


CONCLUSION OF LAW

Bilateral hearing loss, including central auditory processing disorder, was not incurred or aggravated in service, and may not be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 and  Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty 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 and 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 Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in October 2008.  This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence.  The October 2008 letter provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess, 19 Vet. App. at 473.  

The duty to assist provisions of the VCAA have been met.  The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations in November 2008, August 2010, and June 2012.  A supplemental opinion to the June 2012 was provided in January 2013.  The June 2012 examination combined with the January 2013 supplemental opinion was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests.  The examiner also provided a rationale for the opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

The Veteran testified at a hearing before the undersigned in November 2011.  At a hearing on appeal, 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).  At the hearing, the Veteran's representative clearly set forth the issues on appeal.  During this hearing, the undersigned suggested the submission of evidence that would assist the Veteran in substantiating his claim.  Specifically, the Veteran was asked if he had any audiological testing conducted since his most recent examination in August 2010.  He was also asked for his lay opinion regarding whether his hearing had worsened since his examination and he answered in the affirmative.  He was asked if he had been evaluated for central auditory processing disorder and he responded in the negative.  

This case was remanded in June 2012 so that the Veteran could be afforded a VA examination.  He underwent an adequate examination in June 2012.  There was substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claim.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

Service Connection Claim

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases.  38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also 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).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or 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 between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran asserts that he was exposed to noise from cannons, grenades, and gunfire without hearing protection while serving in field artillery.  His DD Form 214 shows that his military occupational specialty was cannon crewman.  The Board finds the Veteran's assertions that he was exposed to noise during service to be both competent and credible.  Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  

However, for the reasons discussed below, the evidence shows that the Veteran's level of hearing loss does not meet the auditory threshold to be considered a disability for VA purposes, and therefore his claim will be denied.  

The Veteran underwent a fee-based examination in November 2008.  He reported noise exposure in service.  His puretone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT

15
15
15
15
LEFT

15
15
15
10

The average puretone threshold was 15 in the right ear and 14 in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in each ear.  Although the Veteran's hearing loss did not meet the auditory threshold to be considered a disability, his speech recognition was less than 94 percent in both ears.  The November 2008 examination therefore shows that his hearing loss meets the criteria to be considered a disability for VA purposes.  38 C.F.R. § 3.385.  

The examiner diagnosed the Veteran with mild bilateral hearing loss and explained that prolonged noise exposure is a cause of hearing loss.  The November 2008 examination provides probative evidence in support of the Veteran's claim for service connection for bilateral hearing loss.  

The examiner stated that the Veteran's poor speech discrimination "is an indication" of central auditory processing disorder.  However, the examiner did not diagnose this condition.  

In August 2010, the Veteran underwent a VA examination.  He reported noise exposure in the military and denied post-service exposure.  He stated he had shooting qualifications at his post-service job, but that he used hearing protection.  His puretone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT

20
20
15
20
LEFT

10
15
10
15

The average puretone threshold was 19 in the right ear and 13 in the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  The examiner concluded that the Veteran's hearing was normal with the exception of mild loss at 6000 hertz.  The examiner noted that the Veteran's speech recognition was "excellent" bilaterally and found that he did not have hearing loss related to service because his hearing was normal.  

Regarding central auditory processing disorder, the examiner stated that the Veteran was tested using word recognition lists.  His initial responses "did not appear to reflect his maximal efforts."  He was "reinstructed and encouraged throughout testing and his performance dramatically improved.  The Veteran has normal hearing and normal word recognition abilities."  For this reason, the examiner concluded that the Veteran did not have central auditory processing disorder.  The August 2010 examination provides probative evidence against the Veteran's claim.

The Veteran underwent a third VA examination in June 2012, in part to resolve the conflicting opinions of the November 2008 and August 2010 examiners.  At the examination, the Veteran reported noticing hearing loss when he left the military.  He reported that he was exposed to cannons, grenades, and gunfire without the use of hearing protection.  He denied post-service noise exposure.  His puretone 

thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT

20
10
25
10
LEFT

15
20
20
15

The average puretone threshold was 16 in the right ear and 18 in the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in each ear.  The examiner concluded that the Veteran's hearing was normal and did not meet the thresholds required to be considered a disability for VA purposes.  

The examiner explained that a review of the claims file showed that the Veteran's hearing was within normal limits bilaterally at entry into service in May 1977 and at periodic examinations in November 1978, December 1978, and August 1979.  His hearing was also normal at his three VA examinations.  The June 2012 remand directives specifically asked the examiner to comment on the 25 dB threshold measured at 500 hertz during the May 1977 entry examination.  The examiner noted that the remainder of the in-service examinations indicated the same threshold level or better at that frequency, "indicating no acoustic damage during service."  Further, his threshold at 500 hertz during his November 2008 fee-based examination was 15 dB better than the threshold obtained in May 1977, "indicating no acoustic damage."  

The examiner was specifically asked to discuss whether an auditory processing disorder was the cause of the Veteran's 88 percent speech recognition scores in November 2008.  The examiner explained that the Veteran's initial responses to the speech recognition test at the June 2012 examination were "inconsistent with other test results obtained and his conversational abilities."  The examiner noted that after reinstruction, his responses improved "significantly," and were found to be within normal limits, bilaterally.  The examiner emphasized that the same situation occurred at the August 2010 VA examination - the Veteran's responses were "initially very poor and inconsistent," with improvement upon re-instruction.  The examiner found that "[t]his pattern of behavior indicates a lack of compliance with the testing procedures (either intentional or unintentional) rather than an auditory processing disorder."  For this reason, the examiner concluded that the Veteran's pattern of behavior during testing indicated a lack of compliance and not an auditory processing disorder.  The report of the June 2012 examination provides probative weight against the Veteran's claim.

In January 2013, the June 2012 examiner rendered a supplemental opinion.  She stated that there was no indication in the Veteran's medical records that he had been diagnosed with central auditory processing disorder.  

The Veteran underwent a total of three examinations during the development of his claim.  All three of his audiograms revealed hearing that was within normal limits and did not constitute a disability for VA purposes.  38 C.F.R. § 3.385.  The November 2008 speech recognition test met the criteria to be considered a disability for VA purposes.  However, the June 2012 examiner provided a sufficient explanation as to why the Veteran's speech recognition was poor when his audiogram results showed hearing that was within normal limits.  The June 2012 examiner noted that a similar pattern occurred at both the August 2010 and June 2012 examinations, but that upon re-instruction the Veteran scored higher on the speech recognition test.  

The August 2010 and June 2012 VA examinations outweigh the result of the November 2008 examination.  The Board finds that the Veteran's hearing does not meet the threshold to be considered a disability for VA purposes.  38 C.F.R. § 3.385.  Further, the evidence does not show that the Veteran has central auditory processing disorder.  Thus, the Board finds that his hearing loss does not meet the criteria to qualify as a disability for VA purposes.  38 C.F.R. § 3.385 (2012).  Service connection for bilateral hearing loss is therefore not warranted.  See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits). 

In the present case, the Board does not doubt the Veteran's ability to perceive changes in his audiological acuity.  However, a grant of service connection for bilateral hearing loss must be predicated on objective testing findings corresponding to the criteria of 38 C.F.R. § 3.385.  Absent medical or audiological training, credentials, or other demonstrated expertise, the Veteran is unable to provide a competent opinion about whether the specific criteria for an audiological disability for VA purposes were met at any specific point in time. 

The Board emphasizes that Congress specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability.  38 U.S.C.A. § 1110.  Hence, in the absence of competent evidence that the Veteran currently has bilateral hearing loss to an extent recognized as a disability under the governing regulation, there can be no award of service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer  v. Derwinski, 3 Vet. App. 223 (1992). 

Based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim, and service connection for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Service connection for bilateral hearing loss, to include central auditory processing disorder is denied.  


REMAND

While the Board regrets the further delay that another remand of this case will cause, the record is not ready for appellate review of the issue on appeal.  The following further development is required. 

The Veteran is entitled to substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In June 2012, the Board remanded this case so the Veteran could undergo a VA examination.  The examiner was specifically asked to determine whether the Veteran had an ear disease such as Meniere's disease.  In the January 2013 supplemental opinion, the audiologist who conducted the June 2012 examination stated that the issue of whether the Veteran had Meniere's disease "would need to be addressed by an ENT physician."  The Veteran's case was not referred to an ear, nose, and throat physician and no opinion was rendered regarding whether the Veteran's hearing loss is due to Meniere's disease or any other ear disease.  Therefore, a remand is warranted so that an ENT physician can answer the inquiry made in the June 2012 VA examination.  Id.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an ear, nose and throat examination.  

The purpose of the examination is to determine whether the Veteran has an ear disease manifested by hearing loss, balance problems, vertigo, headaches, and nausea, including Meniere's disease, that had its onset or was aggravated during active service, or is otherwise related to any incident of service. 

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding.  Noise exposure in service is conceded.  

c) The Board calls the examiner's attention to the Veteran's November 2011 hearing testimony where the Veteran asserted that he has headaches and feels like his equilibrium is "off." 

d) The examiner must specifically provide an opinion as to whether the Veteran has an ear disease, including Meniere's disease.  For each ear disease diagnosed, the examiner must provide an opinion as to whether it began during active service, or is related to any incident of service.   

e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

f) If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 

2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 






							(Continued on the next page)

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
	S. L. Kennedy	
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs