Citation Nr: 1319298 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 08-05 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which essentially reopened the Veteran's claim for service connection for bilateral hearing loss, but then denied the claim on the merits. The RO also denied the Veteran's claim for service connection for tinnitus. The Veteran was scheduled for a Central Office hearing in June 2008. However, in a May 2008 letter, the Veteran canceled his hearing request. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2012). In a May 2009 decision, the Board found that new and material evidence had been submitted to reopen the previously denied claim of service connection for bilateral hearing loss, but denied the claims for service connection for bilateral hearing loss and tinnitus. The Veteran appealed the May 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2011, the Court issued a Memorandum Decision that vacated the Board's decision, in part, and remanded the claims to the Board for further proceedings. Pursuant to the March 2011 Court decision, in October 2011, the Board remanded the claims for service connection for bilateral hearing loss and tinnitus for additional development. In February 2013, the Board granted the claim for service connection for tinnitus and again remanded the claim for service connection for bilateral hearing loss for additional development. Pursuant to the February 2013 Board decision, a February 2013 rating decision granted service connection for tinnitus and assigned a 10 percent rating, effective February 12, 2006. This represents a full grant of benefits for the issue of service connection for tinnitus. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of entitlement to an increased rating 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. FINDING OF FACT A chronic hearing loss disability was not shown in service or for many years thereafter, and the most probative evidence fails to link the current disorder to service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a March 2006 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2006 letter (in the Virtual VA claims file) issued prior to the decision on appeal advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in April 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private medical records, VA examination reports, lay statements from the Veteran's family and friends, and the Veteran's statements. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining outstanding treatment records from the Corpus Christi Naval Air Station; obtaining outstanding treatment records from a private provider, Dr. K.; and scheduling the Veteran for a VA examination to obtain an etiology opinion for his bilateral hearing loss that considered his lay statements, discussed the medical evidence and considered the medical history, and provided sufficient rationale other than the fact that the Veteran had normal hearing at separation. In response, the RO/AMC sent a January 2012 request to Dr. K for all outstanding medical records. In a February 2012 letter, the Veteran indicated that Dr. K had recently passed away. He submitted all of the treatment records from Dr. K that he had in his possession. The RO also requested records from Corpus Christi Naval Air Station from both the Corpus Christi Naval Medical Facility as well as the National Personnel Records Center. However, both facilities provided negative responses, and consequently, in September 2012, the RO/AMC made a Formal Finding of Unavailability of the Corpus Christi Naval Air Station treatment records prior to 1993. Additionally, the RO/AMC scheduled the Veteran for a July 2012 VA examination for his hearing loss as well as a March 2013 VA addendum opinion that followed the mandates of the remands. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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, or 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. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts service connection for bilateral hearing loss on the basis that he developed the conditions due to in-service, combat-related acoustic trauma. He has also alleged that he has continuously experienced bilateral hearing loss since discharge from service. As an initial matter, prior to November 1, 1967, service department 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 in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards. For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Satisfactory evidence is credible evidence. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). This provision does not establish a presumption of service connection. Rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. Both of those inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997). Service personnel records show that the Veteran received awards, including the Republic of Vietnam Campaign Medal and Vietnam Service Medal with 2 Bronze Service Stars. However, these awards are not indicative of combat, and the Veteran did not receive any other awards that specifically denoted combat. Additionally, the record does not contain other evidence of the Veteran actually participating in combat. Therefore, the Board finds that the combat presumption does not apply in this case. However, service personnel records indicate that the Veteran's military occupational specialty was Field Artillery Basic. The Board notes that noise exposure is consistent with the duties and circumstances of being in Field Artillery Basic. As such, the Board concedes the occurrence of the in-service acoustic trauma. Service treatment records are negative for any complaints, diagnoses, or treatment for bilateral hearing loss. On separation examination in September 1967, the Veteran's hearing was found to be normal on examination. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 --- 15 LEFT 20 10 15 --- 10 Moreover, on the Veteran's report of medical history, he denied having a history of either ear trouble or hearing loss. Post-service VA and private medical records dated from December 1993 to June 2000 show that the Veteran received treatment for bilateral severe sensorineural hearing loss. A December 1998 VA medical report noted that the Veteran had a history of hazardous noise exposure. In an October 1999 letter, the Veteran's private treating physician stated that the Veteran had a long history of progressive bilateral sensorineural hearing loss. He reported that it had been previously recommended that the Veteran not be exposed to any possible acoustic trauma, but that the Veteran kept winding up in job environments where he was exposed to loud noise or acoustic trauma. In his February 2006 claim, the Veteran asserted that his bilateral hearing loss first manifested in 1966 as a result of noise exposure. On VA examination in July 2006, the Veteran reported that his bilateral hearing loss had existed for 32 years. The Veteran had experienced hearing problems since Vietnam service and had experienced hearing problems even while he was there. He reported that he had worked as a gunner with an artillery unit that fired day and night. He indicated that he had not used any hearing protection and had required a hearing conservation program. After service, the Veteran worked on jets and as an asphalt worker. He wore hearing protection at both jobs and entered hearing conservation programs. He also stated that he had used power tools without any hearing protection. He complained of currently having difficulty hearing conversation. After examination, the examiner found that a diagnosis was not possible because of the poor reliability of the test findings. She explained that the Veteran's pure tone findings did not agree with the speech recognition score or the spondee thresholds. The Veteran submitted lay statements dated in August 2007 from his wife, daughter, and friend. The Veteran's wife reported, in pertinent part, that the Veteran had suffered from trouble with his hearing for as long as she could remember. She stated that she had to yell at him in order for him to hear her. The Veteran's son indicated that the Veteran had had trouble with his hearing for years and that the family would have to repeat themselves or speak in a louder tone for him to hear them. The Veteran's friend reported that she and the Veteran had grown up together and that she had noticed the Veteran having hearing problems in the last few years. At an October 2007 VA examination, the Veteran was noted as complaining of hearing difficulty in both ears that started over 20 years ago. His noise history included exposure to artillery and aircraft during service. Audiometric testing at that time revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 75 80 LEFT 35 40 45 60 85 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 68 percent in the left ear. The examiner diagnosed the Veteran with mild to severe sensorineural hearing loss and opined that it was not at least as likely as not that the Veteran's hearing loss had its onset during his service. He reasoned that the Veteran's September 1965 enlistment examination and October 1967 separation examination revealed that his hearing was within normal limits in both ears. On VA examination in July 2012, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 70 85 90 LEFT 45 50 80 90 100+ Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 52 percent in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and opined that it was not at least as likely as not that the Veteran's hearing loss was caused by his period of service. She reasoned that the Veteran's September 1965 enlistment examination and October 1967 separation examination revealed that his hearing was within normal limits in both ears, and therefore, a clinically significant shift in hearing sensitivity during the Veteran's service was ruled out. She also noted that the October 1999 letter from the Veteran's private physician revealed that the Veteran had reported significant occupational noise exposure. The examiner also cited June 2000 and July 2006 audiologic evaluations in which there were inconsistencies and poor test reliability. In a March 2013 VA addendum opinion, a VA examiner reviewed the Veteran's claims file and opined that it was less likely as not that the Veteran's hearing loss was the result of his military service. He noted that the Veteran had normal hearing on both his induction examination and separation examination. He found no significant threshold shifts when comparing the evaluations. The examiner also explained that there was no scientific evidence to indicate that hearing loss occurred retroactively as the result of noise exposure. In an April 2013 statement, the Veteran indicated that he had suffered from hearing problems since the late 1980s. Upon review of the record, the Board finds that service connection for bilateral hearing loss is not warranted. The evidence of record shows that the Veteran has a current hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. However, the Board reiterates that the Veteran's service treatment records are negative for any bilateral hearing loss. Indeed, on separation examination in September 1967, the Veteran denied having any hearing loss or ear trouble. The Veteran's statement regarding his lack of hearing loss symptoms is highly probative, as it was made contemporaneous with his service. Therefore, the Board finds that the evidence does not show that the Veteran had a chronic hearing loss disability in service. In addition, sensorineural hearing loss was not clinically shown to a compensable degree within one year following the Veteran's discharge from service. Therefore, service connection for bilateral hearing loss is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Moreover, at no time did any of the Veteran's treating providers find that his bilateral hearing loss was due to his period of service. The October 2007 VA examiner's opinion that the Veteran's sensorineural hearing loss did not have its onset during service because his hearing was within normal limits at his October 1967 separation examination service connection has insufficient rationale, as service connection is not precluded for hearing loss that first met the requirements of 38 C.F.R. § 3.385 after service. See Hensley v. Brown, 5 Vet. App. 155. Thus, the insufficient rationale of the October 2007 VA opinion diminishes its probative weight. However, the Board finds that, taken together, the July 2012 and March 2013 VA examiners reviewed the claims file, interviewed and examined the Veteran, and provided adequate reasoning and bases for the opinion that it was less likely than not that the Veteran's bilateral hearing loss was due to his period of service. The July 2012 VA examiner explained that the Veteran's September 1965 enlistment examination and October 1967 separation examination revealed that his hearing was within normal limits in both ears, and therefore, a clinically significant shift in hearing sensitivity during the Veteran's service was ruled out. She also noted that the October 1999 letter from the Veteran's private physician revealed that the Veteran had reported significant occupational noise exposure. Additionally, the March 2013 VA examiner also explained that there was no scientific evidence to indicate that hearing loss occurred retroactively as the result of noise exposure. For these reasons, the July 2012 opinion in connection with March 2013 VA addendum opinion are afforded great probative value. As the Veteran has been diagnosed with bilateral sensorineural hearing loss (organic disease of the nervous system), a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2012), service connection based on a theory of continuity of symptomatology can also be warranted under 38 C.F.R. § 3.303(b) (2012) for his bilateral hearing loss. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran is competent to report the onset and chronicity of symptomatology of his bilateral hearing loss, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the issue of whether a veteran has a diagnosis of hearing loss that is considered a disability for VA purposes, see 38 C.F.R. § 3.385 (2012), falls outside the realm of common knowledge of a lay person. Thus, while the Veteran can competently report the onset and symptoms of some level of hearing loss, an actual diagnosis of hearing loss for VA compensation purposes requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to his current hearing loss requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran himself believes that his current bilateral hearing loss is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current bilateral hearing loss is not competent medical evidence, as such question requires medical expertise to determine. Id. The Veteran contends that he has continuously experienced hearing loss since his exposure to noise in service, but he is not competent to determine that the hearing loss has been severe enough to be considered a disability for VA purposes or that the continuous hearing loss is due to his in-service noise exposure. Although the Veteran is competent to report the onset and chronicity of symptomatology of his bilateral hearing loss, the Board notes that there are inconsistencies in the evidence of record regarding the onset of his bilateral hearing loss. In his February 2006 claim, the Veteran asserted that his bilateral hearing loss had first manifested in 1966 as a result of noise exposure. However, the Veteran had reported having hearing loss for only the past 32 years at his July 2006 VA examination, and he reported having hearing loss for over 20 years at his October 2007 VA examination. Most recently, in an April 2013 statement, the Veteran asserted that he had suffered from hearing problems since the late 1980s. The Board finds that the Veteran's lay assertions that his hearing loss had first manifested during his period of service are not credible. The lay statements made in connection with the Veteran's compensation claim dated in February 2006 contradict the contemporaneous statements that he made upon service separation (denying a history of ear trouble or hearing loss). The Board finds that the medical evidence generated at the time of the Veteran's period of service, including the Veteran's statements and responses on medical questionnaires, to be highly probative. These records are contemporaneous with the Veteran's period of service and contain information that is inherently more reliable than that recorded at a later time, as they are not made in connection with filing a claim for compensation purposes. The September 1967 separation examination report shows that the Veteran had normal hearing upon separation from service, and the Veteran denied a history of ear trouble or hearing loss. Furthermore, the Veteran's statements at his July 2006 and October 2007 VA examinations as well as in his April 2013 statement all indicate that the onset of his hearing loss began after discharge from service. The Board acknowledges that the Veteran submitted lay statements from his wife, daughter, and friend indicating that he had been suffering from hearing loss for years. However, these statements did not indicate that they witnessed the Veteran having hearing loss in service. In sum, the Board finds that the preponderance of the evidence indicates that the Veteran did not have a chronic hearing loss disability in service, and there is no competent and credible evidence indicating he had hearing loss manifested to a compensable degree within a year following discharge from service. Likewise, the weight of the competent and probative evidence does not show the Veteran's current bilateral hearing loss is related to his period of service, to include his exposure to noise therein. Accordingly, service connection for bilateral hearing loss is not warranted on any basis. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs