Citation Nr: 1320061	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  10-42 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Whether there is new and material evidence to reopen a claim of entitlement to service connection for a hearing loss disability.  

2.  Entitlement to service connection for a hearing loss disability.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel



INTRODUCTION

The Veteran served on active duty in the United States Navy from September 1944 to June 1946, so during World War II.  He was as a Machinist Mate and, throughout his service, assigned primarily to Construction Battalions.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) determining there was new and material evidence since prior, final and binding, April and November 1998 rating decisions initially considering and denying his claim for service connection for hearing loss.  Because of the new and material evidence since those prior decisions, the RO reopened the claim - albeit then continued to deny the claim on its underlying merits.

Irrespective of what the RO determined regarding whether there is new and material evidence to reopen this claim, so, too, must the Board make this threshold preliminary determination, before proceeding further, because this initial determination affects the Board's jurisdiction to consider the claim on its underlying merits.  See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted).  See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Appellant's previously and finally denied claims); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992).

In this decision the Board, like the RO, is reopening the claim because there is the required new and material evidence, but also like the RO continuing to deny the claim on its underlying merits.

Please also 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.  In unappealed April and November 1998 rating decisions, the RO initially considered and denied the Veteran's claim of entitlement to service connection for a hearing loss disability.

2.  Additional evidence received since the November 1998 decision, however, is neither cumulative nor redundant of evidence considered in that decision and the prior April 1998 decision and, by itself or in connection with the evidence previously assembled, relates to an unestablished fact necessary to substantiate this claim for hearing loss or raises a reasonable possibility of substantiating this claim.

3.  The Veteran's hearing loss disability was first manifested many years after his military service, even accepting that he repeatedly was exposed to loud noise during his service in the manners alleged, and the preponderance of the competent and credible evidence of record - so the evidence that is most probative - is against finding that his hearing loss is in any way related or attributable to his service, including especially to the noise exposure in service.



CONCLUSIONS OF LAW

1. The RO's April and November 1998 rating decisions initially considering and denying the Veteran's claim of entitlement to service connection for a hearing loss disability are final and binding decisions based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012).

2.  But there is new and material evidence since the November 1998 decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  It still is not shown, however, the Veteran's sensorineural hearing loss disability is the result of disease or injury incurred in or aggravated by his military service or that it may be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

Prior to considering the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory and regulatory duties to notify and assist him in developing his claim of entitlement to service connection for a hearing loss disability.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

A review of the record discloses this is not his first time claiming entitlement to service connection for a hearing loss disability.  A prior claim for this same disability was considered and denied by the RO in April and November 1998.  He was properly notified of each of those decisions, as well as of his procedural and appellate rights, but he did not appeal either of those prior decisions.  38 C.F.R. § 20.200.  Therefore, those decisions are final and binding on him based on the evidence then of record.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2012).  

So to reopen this claim and warrant further consideration of it on its underling merits, there has to be new and material evidence since that November 1998 decision since it is the last final and binding decision denying the claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  See also Evans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final and binding disallowance of a claim on any basis, so irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim).

In September 2009, the Veteran filed a petition to reopen his claim of entitlement to service connection for a hearing loss disability, and there is no issue as to providing him an appropriate application form or completeness of the application.

In response, VA notified him of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him versus the evidence VA would attempt to obtain for him.  VA also informed him of the bases for the prior denials of his claim and advised him of the evidence necessary to substantiate the element or elements required to establish his entitlement to service connection that were found insufficient in the previous denials.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).  As well, VA informed him of the evidence necessary to support his underlying 
service-connection claim, meaning when considered on its underlying merits, as well as how VA determines a disability rating and an effective date in the eventuality that service connection for the claimed disability is granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (observing that a claim of entitlement to service connection consists of five elements:  (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.  So compliance with the holding in Quartuccio v. Principi, 16 Vet. App. 183 (2002), requires apprising the Veteran of all five of these elements of the claim, including the "downstream" disability rating and effective date elements.  See Dingess, at 486.

Along with provision of that notice to the Veteran, VA also fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim.  VA obtained or ensured the presence of his service treatment records; records reflecting his post-service treatment and evaluations associated with his employment at the Idaho National Engineering Laboratory from March 1962 to August 1987; a report of audiologic testing at Alpine Audiology in December 2003; a report of private audiologic testing by V. J. L. in September 2009; and a November 2009 statement from D. E. L.

As well, in August 2010 VA examined the Veteran to ensure he has a ratable hearing loss disability (which, as will be explained, means sufficient hearing loss to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385), and, if confirmed that he does, for a medical nexus opinion regarding the etiology of this hearing loss, but especially in terms of whether it is related or attributable to his military service and, in particular, to the type of noise exposure he claims to have had in service and the consequent injury (acoustic trauma).  To this end, the VA examiner reviewed the Veteran's medical history, interviewed and examined him, documented her evaluation findings, and rendered a diagnosis and opinion consistent with the evidence in the file.  Therefore, the Board concludes the examination is adequate for rating purposes.  38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, even if not statutorily obligated to, it must ensure the examination or opinion is adequate, else, notify the Veteran why this cannot be accomplished).


The Board also sees that, in his October 2010 Substantive Appeal (on VA Form 9), the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ) of the Board.  But in February 2012 the Veteran withdrew his hearing request and has not since retracted it and asked to reschedule his hearing.  Therefore, the Board is proceeding with the adjudication of his appeal inasmuch as there is no outstanding hearing request.  38 C.F.R. §§ 20.700(a) and (e), 20.702(e), and 20.704(e).

He therefore has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting him that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication.  VCAA notice and assistance errors are not presumptively prejudicial, even when for the sake of argument shown to have occurred, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  There is no such pleading or allegation in this instance.

Analysis

The Veteran contends he has a bilateral (i.e., right and left ear) hearing loss disability, both as a result of his exposure to the sound of small arms fire in service and to the sound of heavy equipment used during his assignments to Construction Battalions in service.  Therefore, he maintains that service connection is warranted because this disability is attributable to his military service.  At the very least, he contends that, since his claim was last denied in 1998, he has submitted new and material evidence to reopen his claim.

The Board agrees there is new and material evidence to reopen the claim, but there still is not the required competent and credible evidence associating the Veteran's present-day hearing loss disability with his military service, so the Board is ultimately denying his claim on its underlying merits, so his appeal on the whole.

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

If VA determines there is new and material evidence, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been satisfied.  See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000)).  This second step becomes applicable only when the preceding step is satisfied.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).

In November 1998, when the RO last denied the Veteran's claim of entitlement to service connection for a hearing loss disability, the evidence on file consisted of his service treatment records (STRs) and records reflecting his post-service treatment and evaluations as a term of his employment at the Idaho National Engineering Laboratory from March 1962 to August 1987.  Those records were unremarkable for any findings of a chronic, identifiable, hearing loss disability in service.  They did show the presence of a bilateral sensorineural hearing loss many years after service.  However, the preponderance of the competent and credible evidence then of record was against finding a correlation ("nexus") between the hearing loss any incident (disease, injury or event) in service.  Inasmuch as there were no findings of hearing loss in service or this required linkage between the Veteran's hearing loss disability and his service, the disorder, though shown, did not meet the criteria for service connection.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  Accordingly, service connection was denied and, absent an appeal, that decision became final and binding based on the evidence then of record.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012).

Evidence subsequently presented by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining whether it is new and material.  Justus v. Principi 3 Vet. App. 510, 512 (1992).  See also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent).  This presumption, however, only applies when making a determination as to whether the evidence in question is new and material.  It does not also apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim.  Essentially, then, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits.  See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept as true assertions that are beyond the competence of the person making them).

Evidence added to the record since the RO's November 1998 decision includes an internet website article indicating that "[e]xposure to harmful levels of noise results in noise-induced hearing loss."  It further states that such "noise-induced hearing loss usually develops gradually and painlessly".  The article explains that "[h]earing loss can also occur as a result of an acoustic trauma, or a single exposure or very few exposures to very high levels of sound."  This evidence is new in the sense that it was not considered in the prior April and November 1998 adjudications of this claim.  And since it suggests the potential for a gradual loss of hearing following exposure to high noise levels, it also tends to substantiate the claim by suggesting this is the source of the Veteran's hearing loss inasmuch as he had this type of activity during his military service.

Consequently, this evidence is neither cumulative nor redundant of the evidence of record in 1998 and, when considered with the Veteran's assertions of a gradually progressing hearing loss since his service, raises a reasonable possibility of substantiating his claim of entitlement to service connection for a hearing loss disability.  Because, then, this evidence is both new and material it is sufficient to reopen his claim.  In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant the claim.  Id., at 1363.

Also, since the December 2009 decision from which this appeal ensued the lower U. S. Court of Appeals for Veterans Claims (Court/CAVC) decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010).  In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id., at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a "low threshold" for reopening a claim, one not requiring the submission of evidence that is new, material, and raises a reasonable possibility of substantiating the claim.  That is to say, there are two, not three, requirements for reopening a claim.  Moreover, the newly-proffered evidence need not address all of the bases of the prior denial of the claim, only instead at least one.

Hence, to this extent, and this extent only, the appeal is granted.  Accordingly, the Board will next proceed to adjudicating the claim on its underlying merits.


Service connection is granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306.

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and, (3) competent and credible evidence of a relationship, or nexus, between the disease or injury in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Certain diseases are considered chronic, per se, including organic diseases of the nervous system such as sensorineural hearing loss, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 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.  

This rule does not mean that any manifestation in service will permit service connection.  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."  38 C.F.R. § 3.303(b).  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  When, however, the fact of chronicity in service is not adequately supported or legitimately questionable, then a showing of continuity of symptomatology after discharge from service is required to support the claim.  Id.  Establishing continuity of symptomatology under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  By regulation, sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system".  Moreover, VBA's M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note:  "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

A disease first diagnosed after service may be service connected if the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2012).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though not always, required to associate the claimed condition with service or a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).


The evaluation of evidence generally involves a three-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 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether it is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  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.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

On the other hand, laypersons equally have been found not competent in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).


After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on 
behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

Turning now to the relevant facts and circumstances of this particular case at hand.

The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).  According to VA standards, however, impaired hearing only will be considered to be an actual ratable 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 these frequencies 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).

But for service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, or even within the one-year presumptive period following discharge, although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability.  If there is current ratable hearing loss disability, then service connection is possible if this current disability can be adequately linked to the Veteran's military service as opposed to other unrelated factors.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Service connection for hearing loss may be granted where there is competent and credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley, 5 Vet. App. at 159.

The Veteran's STRs, including the reports of his August 1944 military entrance examination and his June 1946 military separation examination, are entirely unremarkable for any complaints or clinical findings of hearing loss.  On entry, his ears were found to be normal, and his hearing acuity was 15/15.  At separation, there was no evidence of ear disease or defects.  His hearing acuity was measured using three different tests and was found to be normal in each ear and bilaterally.  

When listening to a watch, his hearing acuity was 40/40.  During a coin click test, it was 20/20, and on whispered voice testing it was 15/15.  His military service ended in June 1946.

There was no suggestion of sensorineural hearing loss within the initial post-service year, meaning by June 1947, certainly not to the required minimum compensable degree of at least 10-percent disabling to warrant presuming it had been incurred in service.

Years later, from March 1962 through August 1987, the Veteran was employed at the Idaho National Engineering Laboratory.  During his March 1962 pre-placement examination, his hearing acuity was found to be 20/20, bilaterally.  His eardrums were found to be okay, also bilaterally, and there was no evidence of any discharge from his ears.  During a November 1965 periodic examination, he responded "Yes" when asked whether he had ever had or had ever been treated for an ear disorder.  That disorder, however, was identified as ear wax.  He answered "No" when asked whether he had ever had or had ever been treated for defective hearing, and a physical examination revealed no ear abnormality.

During his employment at the Idaho National Engineering Laboratory, the Veteran had many audiograms to test his hearing acuity.  His earliest tests, such as those in November 1970 and November 1972, were negative for any findings suggestive of hearing loss.  His auditory threshold in the relevant frequencies of 500, 1000, 2000, 3000, and 4000 Hertz was below 40 decibels, and he did not demonstrate an auditory threshold of at least 26 decibels in at least three of those frequencies.  Moreover, the examiner confirmed the Veteran had no hearing loss disability, bilaterally.  Indeed, the post-service employment records show he did not evidence a hearing loss disability in either ear for many years after service.  Such a long amount of time following service without any clinical evidence supporting the assertion of continuity of symptomatology does not lend credence to the Veteran's contentions that he has experienced continuous hearing loss since his service.  

Indeed, to the contrary, when considering the numerous intervening occasions when his hearing acuity tested - by audiogram no less - and determined to have been within normal limits militates strongly against his claim.  In this circumstance, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following the conclusion of his service during which there was no clinical documentation of the claimed disorder).

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

That said, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).  Still though, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).

Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

The RO, like the Board, reopened this claim after finding there was new and material evidence.  In Shade, the Court explained that evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  So if there is newly-submitted evidence of current disability that in connection with the prior evidence raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.  To this end, after reopening his claim, the RO provided the Veteran a VA compensation examination to determine the nature and etiology of his hearing loss disability when also considering his reports of continuing symptoms since service.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v Nicholson, 20 Vet. App. 79 (2006).  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.)


The Veteran had this VA examination in June 2010.  At the conclusion of it, the diagnosis was bilateral sensorineural hearing loss.  There also was sufficient hearing loss according to 38 C.F.R. § 3.385 to be considered a ratable disability by VA standards since he had the following puretone thresholds, in decibels (dB), in the indicated frequencies (Hertz (Hz));




HERTZ



500
1000
2000
3000
4000
LEFT
25
35
50
55
60
RIGHT
15
45
55
60
70

So the average for the left ear was 50 dB and for the right 57.5 dB.

He had speech recognition ability of 96 percent for is left ear and 94 percent for his right ear.

But regarding the etiology of this bilateral sensorineural hearing loss, after reviewing the record a second time in August 2010, the VA examiner concluded that, given the Veteran's normal hearing in both ears in 1965 and the lack of a hearing loss for VA purposes until much later, his hearing loss disability was not caused by or a result of his military noise exposure.  She therefore at least seemingly conceded he had noise exposure in service of the type and to the extent alleged.  See 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012) (requiring that VA give due consideration to the circumstances, conditions and hardships of a Veteran's service).  See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion).  Ultimately, though, she found reason for disassociating the present-day hearing loss from service given the normal hearing acuity in service and for many years after the Veteran's discharge, so including during the several intervening occasions when it was tested at his civilian job by way of audiograms.


The Veteran has supplemented the record with the medical treatise evidence he obtained from a website on the Internet, which the Board earlier alluded to was reason or justification for reopening his claim.  This internet or medical treatise evidence, however, does not reference the specific facts of this particular case so is less probative than the VA examiner's unfavorable opinion.  Where medical article or treatise evidence, standing alone, discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay opinion, a claimant may use such evidence to meet the requirement for a medical nexus.  Wallin v. West, 11 Vet. App. 509 (1998).  But an attempt to establish a medical nexus between service and a disease or an injury solely by generic information in a medical journal or treatise "is too general and inclusive."  Sacks v. West, 11 Vet. App. 314, 317 (1998) (holding that a medical article that contained a generic statement regarding a possible link between a service-incurred mouth blister and a present pemphigus vulgaris condition did not satisfy the nexus element).  Still, medical treatise evidence can provide important support when combined with an opinion of a medical professional.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  See also Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidence from scientific journal combined with doctor's statements was "adequate to meet the threshold test of plausibility").

Here, though, there is no such supporting doctor's statement, only instead the Veteran's unsubstantiated lay opinion.  And sensorineural hearing loss is not the type of "simple" condition allowing him to provide probative lay comment regarding its etiology, rather is medically complex.  His lay opinion therefore is less probative than the VA examiner's unfavorable opinion.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).  

The adoption of an expert medical opinion, such as this VA compensation examiner's June and August 2010 opinion, because she is an audiologist specializing in hearing-related disorders, may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as here, the expert fairly considered the material evidence seemingly supporting the Veteran's position.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995).  This VA examiner's opinion was based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale, which is where most of the probative value is derived, not from mere review of the claims file.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file).

Inasmuch as there is no evidence of chronic, identifiable, hearing loss in service or for many years thereafter, and inasmuch as the preponderance of the competent and credible evidence of record is against finding that the Veteran's current hearing loss disability is in any way related or attributable to his service, his hearing loss disability does not meet the requirements for service connection.  Moreover, since the preponderance of the evidence is against his claim, there is no reasonable doubt to resolve in his favor, in turn meaning his appeal of this claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



ORDER

Because there is new and material evidence, the petition to reopen the claim of entitlement to service connection for bilateral hearing loss is granted.

However, the underlying claim of entitlement to service connection for a bilateral hearing loss disability is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs