Citation Nr: 1319466	
Decision Date: 06/17/13    Archive Date: 06/27/13

DOCKET NO.  09-48 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

The Veteran served on active duty from January 1975 to January 1978.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Board has reviewed the claims file and the Virtual VA electronic file. 


FINDING OF FACT

The Veteran's bilateral hearing loss did not have onset in service or within one year of service and was not caused by or otherwise related to the Veteran's active service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

First, VA has a duty to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim.  In this regard, a December 2008 letter to the Veteran from the RO specifically notified him of the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and VA for obtaining that evidence.  VA essentially satisfied the notification requirements by:  (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 

The notice requirements apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was provided with notice of that information in the December 2008 letter.  

VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012).  The information and evidence associated with the claims file consist of his service medical records; VA treatment records, to include a November 2009 audiological examination; and statements from the Veteran and his representative.  There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran.  

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).  

Service connection may 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).  

Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2012).  

To show 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.  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  

Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of that service, establishes a rebuttable presumption that the disease was incurred in service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed Circ. 2009); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).  

At time of service entrance, audiometric testing showed pure tone thresholds, in decibels, were as follows:




HERTZ


500
1000
2000
4000
RIGHT
15
10
5
5
LEFT
15
5
10
5

There are no additional audiometric test results from the Veteran's time during service, to include at the time of separation.  At no time were complaints registered of hearing loss.  Nor was there treatment for, or diagnosis of, hearing loss during service.

The Veteran filed a claim for bilateral hearing loss in December 2008.  In support of his claim, he submitted a VA audiometric examination report dated in November 2008.  At that time, the Veteran reported a history of noise exposure both during active service and afterwards in his job as a carpenter.  The examiner diagnosed a bilateral mild to severe sensorineural hearing loss.  A hearing aid order was placed.  

Upon VA audiometric evaluation in November 2009, the examiner noted that the claims file was reviewed.  The Veteran reported that he was a carpenter during service and exposed to high noise levels from power tools.  After service, he continued to work as a carpenter and continued to have noise exposure.  The reported pure tone thresholds on examination were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
35
35
45
65
LEFT
50
40
40
50
65

Speech audiometry revealed speech recognition ability of 54 percent in the right ear and of 58 percent in the left ear.  The average pure tone decibel loss in the right ear was 45 decibels and 48.75 decibels in the left ear.  

As to the question of whether the Veteran's current hearing loss resulted from inservice noise exposure, the examiner could not resolve the question without resorting to mere speculation.  The examiner noted that the service medical records included only an entrance audiometric examination which showed normal hearing.  While audiometric evaluation in 2009 showed hearing loss greater in the higher frequencies consistent with noise exposure, the examiner was unable to determine if any of his current hearing loss was due to military service, without resort to mere speculation, "since there was no separation hearing examination, and the veteran reported a 30+ year history of civilian noise exposure."  The examiner adequately explained why an opinion could not be offered without resort to speculation because the available evidence was insufficient.

Based on all the above evidence, the Board finds that entitlement to service connection for bilateral hearing loss must be denied.  

While it is conceded that the Veteran was exposed to noise during service in his work as a carpenter, the preponderance of the evidence does not support a finding that service noise exposure caused the Veteran's current hearing loss.  During service, there was no evidence regarding hearing loss, yielding an indication that there were no concerns regarding hearing impairment.  The Veteran did not file a disability claim with VA until approximately 30 years after his military service ended.  A VA examiner found that it would mere speculation to conclude that current hearing loss resulted from noise exposure during service, particularly when the Veteran also had a post service history of noise exposure for over 30 years.  

Weighing against the Veteran's claim is the lengthy period of time between his inservice noise exposure and his current hearing loss.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Forshey v. West, 12 Vet. App. 71, 74 (1998); Mense v. Derwinski, 1 Vet. App. 354 (1991).  While, as the Board has noted above, the onset of hearing loss after service does not preclude a finding of service connection if it can be shown by all of the evidence, including that pertinent to service, that the disease was incurred in service, there is little evidence to link the Veteran's current bilateral hearing loss to his military service beyond his own unsubstantiated lay opinion.  

Essentially, the Veteran has offered his own opinion as to the etiology of his hearing loss.  The Veteran has not demonstrated that he has any knowledge or training in determining the etiology of hearing loss disabilities.  He is a layman, not a medical expert.  Evidence must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009Sometimes a layperson will be competent to identify the condition where the condition is simple, such as a broken leg, and sometimes not, for example, a form of cancer.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

While the Veteran is competent to testify regarding his subjective, observable complaints of diminished hearing, the Board finds that the question of whether the Veteran currently has hearing loss due to noise exposure in service, rather than some other cause, is too complex to be addressed by a layperson.  That connection or etiology is not observable through the senses of a lay person.  Rather it is common knowledge that medical etiological relationships are the subject of extensive research by scientific and medical professionals.  Therefore, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight.  

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection.  Therefore, the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs