Citation Nr: 1319875	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  10-01 245	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from September 1986 to April 1990. 

This matter comes before the Board of Veterans' (Board) on appeal from a June 2008 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The weight of the probative evidence does not show that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA regulation.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.     38 U.S.C.A. §§ 1110, 1113, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. 

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, 3.56(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide.

The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In December 2007, the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The December 2007 notice letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess.

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further 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 medical 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 VA has obtained copies of the Veteran's service treatment and personnel records, and has reviewed the evidence in the Virtual VA system.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded a VA examination in May 2008, and the results of which have been included in the claims file for review.  The May 2008 VA examination involved review of the claims file and thorough examinations of the Veteran.  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected.

II. Merits of the Claim

The Veteran contends his bilateral hearing loss is related to his military service. 

Governing Law and Regulations 

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).

Generally, the evidence must show: (1) the existence of a present disability; (2) 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.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).  

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

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.  If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). 

Here, the Veteran is claiming entitlement to service connection for bilateral sensorineural hearing loss, which is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a).  Service connection can be establish for sensorineural hearing loss solely based on lay statements of continuity of symptomatology since service. 

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

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, 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).

The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

To establish service connection, the Veteran is not obliged to show that his hearing loss was present during active military service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

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

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis

The Veteran contends that he has bilateral hearing loss as a result of in-service noise exposure.  In a September 2007 statement, the Veteran stated that he exposed to loud noise while stationed in Nuremburg, Germany as a 13-B Field Artillery Specialist, a cannon crewman, an assistant driver, and a gunner on the 110 Howitzer.  He stated that while on a fire mission, he sustained a concussion from a blast which caused bleeding from his eardrums, dizziness, nausea, and blurred vision.  He reported this to his section chief who witnessed the incident and was told he "would be alright."   

The Veteran's DD 214 indicates his military occupational specialty was a cannon crewman for three years and four months.  He was awarded the Army Service Ribbon, the Sharpshooter Badge M-16 Rifle, the Expert Badge Hand Grenade, and the Air Assault Badge, among others. 

The Veteran was afforded a VA examination in May 2008, where he reported impaired hearing.  The Veteran stated that loss of hearing caused him to misunderstand commands and directions at his employment due to his inability to hear the dispatcher clearly over the radio.  He stated that he served in the field artillery outfit and had routine noise exposure while in the military.  He stated hearing protection was provided but not worn on occasion.  He has been employed post-service as a firefighter with occasional exposure to noise.

On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
20
LEFT
10
5
10
10
35

The speech recognition score was 96 percent for the right ear and 100 percent for the left ear.  The examiner determined the Veteran's eardrums were intact with normal middle ear compliance and pressure.  Subsequently, the VA examiner stated "[n]o hearing disability was found at this examination, according to the VA definition of hearing loss." 

Upon review of the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has bilateral hearing loss that was incurred in or is otherwise related to military service.

In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  While the Board recognizes the Veteran's sincere belief in his bilateral hearing loss claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a bilateral ear disability (to include a hearing loss disability) caused or aggravated by military service during any period of his appeal.  Indeed, as noted above, according to the May 2008 VA examination, the Veteran did not have bilateral sensorineural hearing loss as defined by VA regulations.

Specifically, none of the frequencies was 40 decibels or greater; at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were not 26 decibels or greater; and when speech recognition scores using the Maryland CNC Test were at least 96 percent.  38 C.F.R. §3.385 (2012).  As such, the Veteran does not meet the VA requirements for hearing loss.

The Board has considered the Veteran's assertions that his bilateral hearing problems are due to his military service.  In that regard, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing problems with his ears in service and thereafter.  His assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence).  

Given the complex nature of the Veteran's bilateral ear problem and in light of the conclusion of the May 2008 VA examination findings that the Veteran does not have a current bilateral ear disability for VA compensation purposes, the Board concludes that the Veteran's statements and opinions as to diagnosis and etiology are of minimal probative weight.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  In addition, as the Veteran does not have a current diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a) , the theory of continuity of symptomatology based on the Veteran's lay statements is inapplicable.  See Walker, supra.

Although the Board is sympathetic to the Veteran's claim, based on the lack of objective medical evidence demonstrating a current bilateral hearing loss disability, the Board concludes that the preponderance of the evidence is against granting service connection.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to service connection for right ear hearing loss must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).  Should the Veteran wish for further review, he is free to resubmit his claim with any addition evidence to the RO.  


ORDER

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs