Citation Nr: 1319323 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 12-31 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to February 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision rendered by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2013, the Board remanded the appeal for further development. In a May 2013 rating decision, the RO granted service connection for tinnitus. As the Veteran has not expressed disagreement with the effective date or disability rating, that issue is no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran currently does not have hearing loss in the left ear to an extent recognized as a disability for VA purposes. 2. The Veteran's hearing loss in the right ear did not have its onset during active service or for many years thereafter and is not causally related to such service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in April 2011 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in September 2011. VA also 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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, 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 claims file contains the Veteran's service treatment records, as well as a post-service report of VA examination. The Veteran's 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 claim. VA provided the Veteran with an examination in April 2013 to determine the nature and etiology of his disability. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2012). When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report to be thorough and adequate upon which to base a decision on the claim. The examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claim. A brief but relevant and important opinion was provided. The Board finds the opinion to be adequate, as it was based on a full reading of the claims file, and the Veteran's own statements. In the February 2013 remand, the Board requested that the Veteran be scheduled for an examination to determine the nature and etiology of any hearing loss that he may have. As noted above, the Veteran was afforded an examination and the report of that examination is substantially responsive to the Board's request. See Dyment v. West, 13 Vet. App. 141 (1999). Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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) (2012). In this case, the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a disorder noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). Where a veteran served for 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year from the date of separation from such service, the disease shall be presumed to have been incurred in service, even though there is no evidence of the disease in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). 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 (2012). A veteran is competent to give evidence about observable symptoms such as diminished hearing. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence concerning continuity of symptoms after active service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran contends that he has a current disability manifested by bilateral hearing loss that is the result of exposure to acoustic trauma while serving in the Navy aboard the U.S.S. Orca (AVP-49). Although his military occupational specialty was that of a radarman, he alleges that, when he was assigned to General Quarters, he was responsible for the operation of several guns. He states that he has a current hearing loss disability and was forced to retire from a position as a teacher due to problems hearing conversations. The Veteran's service treatment records reflect no complaints, findings or diagnoses of hearing loss in either ear. He denied having ear trouble during his February 1953 entrance examination and whispered voice testing revealed 15/15 hearing in both ears. He denied ear trouble during a February 1957 examination and whispered and spoken voice testing revealed 15/15 hearing in both ears. Finally, his February 1959 discharge examination report reflects that both whispered and spoken voice testing revealed 15/15 hearing in both ears. As the Veteran is competent to state that he was exposed to loud noises during service and to report a history of hearing problems, the Board requested a VA audiological examination to obtain the nature and etiology of any hearing loss. During an April 2013 examination, the Veteran reported a history of hearing loss since the 1970s when his wife complained that the television was louder than normal. Audiometry revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 30 30 LEFT 20 15 10 25 35 Speech recognition scores on the Maryland CNC Word List were 92 percent in the right ear and 94 percent in the left ear. The examiner provided diagnoses of sensorineural hearing loss in both ears. Initially, with respect to the left ear, the record does not establish current hearing loss disability as defined by 38 C.F.R. § 3.385. The Board notes that the Veteran is competent to give evidence about observable symptoms such as diminished hearing. Layno v. Brown, 6 Vet. App. 465 (1994). However, hearing loss, as it is defined by VA, is not the type of condition that are readily amenable to mere lay diagnosis (or probative comment regarding its etiology), as the evidence shows that audiometric testing and other specific findings is needed to properly assess and diagnose the disorder for VA purposes. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms of diminished hearing, there is no indication that the Veteran is competent to diagnose a hearing loss disability for VA purposes. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As indicated above, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). Simply put, in the absence of proof of present disability, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, as there is no hearing loss disability in the left ear for VA purposes that can be related to service, that aspect of the claim must be denied. With respect to the right ear, the record establishes that the Veteran has a current hearing loss disability as defined by 38 C.F.R. § 3.385. However, as discussed above, there is no evidence of complaints, treatment, or diagnosis of right ear hearing loss in service. There is also no evidence of hearing loss until several years after service. To the contrary, the Veteran specifically reported to the VA examiner in February 2013 that the onset of hearing loss was not until the 1970s, which is at least 10 years post-service. Such negates any claim of entitlement to service connection under a presumptive basis (3.309(a)) or the basis of continuity of symptomatology (3.303(b)). The remaining question is whether his hearing loss is otherwise causally related to active service. The April 2013 VA examiner noted the Veteran's history of excessive in-service noise exposure from radar equipment and a 50 mm gun, and that hearing protection had not been available. The examiner noted that the Veteran had no post-service occupational or recreational noise exposure. The examiner noted that the Veteran's hearing loss was first observed by his wife in the 1970s, at which time the Veteran sought treatment and was told that he had nerve damage. The examiner observed that the Veteran's in-service whispered voice hearing tests, including at discharge, indicated normal hearing and that current findings indicate no more than a mild hearing loss for VA purposes. The examiner stated that, given that it has been 54 years since military noise exposure, it is unlikely that this subtle degree of hearing loss existed 54 years ago. The examiner noted that research does not support the delayed onset of hearing loss. The examiner concluded that the Veteran's hearing loss is not related to military service. Given the above, the only medical evidence of record is against the Veteran's claim. As the examiner's opinion is based on a review of the claims file and supported by sound rationale, including a review of the medical literature, the opinion is of great probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Veteran's opinion that his hearing loss is related to his in-service noise exposure lacks sufficient probative value. He is not shown to have the requisite level of medical expertise to provide a nexus opinion. VA's expert opinion clearly outweighs the lay assertions proffered by the Veteran. Thus, despite the Veteran's competent statement of being exposed to loud noises in service, and his belief that his current hearing loss is a result of that acoustic trauma, the Board finds that his hearing loss in the right ear is not causally related to his active service. The Board acknowledges that service connection for tinnitus has been awarded. However, that award was based on the Veteran's report of the tinnitus having had its onset in service. On the contrary, the Veteran has dated the onset of his hearing loss to 20 years after service. Moreover, the VA examiner noted that, although hearing loss and tinnitus are commonly present together, they are not necessarily mutually occurring and have varying causes, to include certain medications, stress, anxiety, nicotine, sodium and excessive caffeine. The examiner further noted that hearing loss does not cause tinnitus or vice versa. Thus, the Board finds that the award of service connection for tinnitus has little bearing on the claim for service connection for hearing loss. Accordingly, based on this evidentiary posture, the Board concludes that service connection for bilateral hearing loss is not warranted. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs