Citation Nr: 1320683 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-11 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to August 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision by the Portland, Oregon Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision the RO denied service connection for bilateral hearing loss. The issues the Veteran appealed previously included service connection for tinnitus. That issue was resolved in a September 2012 Board decision when the Board granted service connection for tinnitus. In March 2011, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). In September 2012, the Board remanded the hearing loss service connection issue to the RO via the VA Appeals Management Center (AMC), for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDING OF FACT The Veteran did not have disabling hearing impairment during service nor for many years after service, through 2008. Bilateral hearing loss found from 2011 forward was not caused by disease, injury, or noise exposure during service. CONCLUSION OF LAW Bilateral hearing loss was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. The RO provided the Veteran VCAA notice in a June 2006 letter, issued before the February 2007 initial unfavorable decision on the claim on appeal. That letter addressed the information and evidence necessary to substantiate claims for service connection and informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. In the March 2011 Travel Board hearing the Veteran was assisted by an accredited representative from the Oregon Department of Veterans Affairs. The undersigned VLJ explained the issues, and noted that the record would be held open for the Veteran to submit a medical opinion on the issue of whether his hearing loss and tinnitus were related to his noise exposure during service. The representative asked the Veteran whether he noticed hearing loss during service. Neither the Veteran nor his representative identified any other pertinent evidence that might have been overlooked and that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The claims file contains the Veteran's service treatment records, post-service treatment records, VA examination reports, and a transcript of the March 2011 Travel Board hearing. The file contains a private audiologist's opinion that the Veteran submitted after the hearing. VA examinations in December 2008 and November 2012 were each performed by a VA audiologist. In the 2008 examination the audiologist reviewed the claims file, solicited history and symptomatology from the Veteran, and thoroughly examined the Veteran and tested his hearing. In the 2012 examination the audiologist reviewed the claims file and tested the Veteran's hearing. In both examinations the audiologists discussed reports and opinions from private sources. The examinations therefore were adequate. In addition, the 2012 examination report and examiner's opinion addressed the issues the Board requested addressed in the September 2012 remand. The remand instructions have been fulfilled, so there is no need to remand the case again. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Hearing Loss The Veteran contends that he has disabling bilateral hearing loss as a result of noise exposure during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only 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). The Board must assess the credibility and weight of all the 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Organization for Standardization (ISO) units to facilitate comparison of results. In the Hensley case the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." 5 Vet. App. at 159. The Court explained that: [W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. 5 Vet. App. at 160. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Military audiograms conducted prior to November 1967 were reported in American Standards Association (ASA) units. VA used ASA units prior to July 1966, but in July 1966 VA adopted International Organization for Standardization (ISO) units. The military began using ISO units in November 1967. The current VA definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units. The Veteran served in the United States Air Force and had duties in and around airplanes. He underwent frequent examinations for flying status. Examination records show that his specialty was B-52 navigator and electronic warfare officer. The reports of his hearing testing during service do not include speech recognition scores. The Veteran had a service department medical examination in July 1963, prior to entering active service. Audiological evaluation performed at that time showed (converted from ASA to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 15 5 LEFT 20 10 15 15 5 On a January 1964 service entrance examination hearing testing showed (converted from ASA to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 -5 LEFT 10 5 10 15 -5 In February 1964 hearing testing showed (converted from ASA to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 5 0 LEFT 10 5 5 5 5 In August 1965 hearing testing showed (converted from ASA to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 0 0 LEFT 10 0 5 10 5 In June 1966 hearing testing showed (converted from ASA to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 20 0 0 5 15 LEFT 15 10 0 0 0 In July 1967 hearing testing showed (converted from ASA to ISO units): HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 5 10 LEFT 25 10 0 5 0 Military audiograms conducted after November 1967 were reported in ISO units. In February 1968 hearing testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -10 -10 LEFT -10 -10 -10 -10 -10 In August 1968 hearing testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 In June 1969 the Veteran had treatment for left ear pain and fullness sensation that the treating clinician described as possible otitis media. In August 1969 an ear, nose, and throat specialist removed dried skin that was lateral to the Veteran's left eardrum. In August 1969 hearing testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 15 LEFT 0 5 5 5 10 In February 1970 hearing testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 5 15 LEFT 15 0 0 5 10 In July 1970 hearing testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 0 15 LEFT 5 0 0 10 5 In August 1971 hearing testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 10 LEFT 0 0 0 0 10 On the Veteran's July 1972 service separation examination hearing testing showed: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 5 LEFT 0 0 0 0 5 The claims file does not contain any measurement of the Veteran's hearing during the year following his separation from service, and the Veteran has not reported that his hearing was tested during that year. The Veteran submitted in 2006 his claim for service connection for hearing loss. He stated that he was a B-52 navigator and that all of his hearing problems were caused by his constant exposure to loud noise on airplanes. On VA audiological examination in February 2007 the examiner reported having reviewed the Veteran's claims file. The Veteran reported that he was exposed to airplane noise during service and that he wore hearing protection. He stated that after service he worked as a parole officer and police officer and wore hearing protection. He related that he had some difficulty understanding conversation when there was noise. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 15 25 25 LEFT 5 10 15 25 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examiner stated that the Veteran's hearing was within normal limits bilaterally through 4000 Hertz. The examiner found that the Veteran had high frequency sensorineural hearing loss at 6000 and 8000 Hertz. The examiner noted that the Veteran's hearing was within normal limits throughout his military service. The examiner provided the opinion that the Veteran's hearing loss was not caused by or a result of his military service. The Veteran submitted the report of an audiological examination performed in May 2007. The examination report is signed but does not state the training or credentials of the examiner. The report shows pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 25 30 35 LEFT 30 15 20 35 40 In a May 2007 statement the Veteran wrote that he experienced acoustic trauma from serving in B-52s without hearing protection. On VA audiological evaluation in December 2008 the examiner reviewed the claims file. The Veteran indicated that the 2007 private hearing testing report was from testing performed by a hearing aid dealer, with the hope of selling hearing aids. In the December 2008 testing pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 25 25 LEFT 10 10 20 25 25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 98 percent in the left ear. The examiner opined that the 2007 private hearing test was not performed to VA standards nor by an audiologist and that the results thus were not reliable. The examiner noted that the Veteran did not have a significant shift in hearing during service and was not found to have disabling hearing impairment during service. The examiner expressed the opinion that the Veteran's present hearing loss was not caused by or a result of acoustic trauma during service. The Veteran submitted the report of audiological evaluation performed in March 2011 by an audiologist for the private medical provider Kaiser Permanente. The audiologist noted that the Veteran reported a history of Air Force noise exposure. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 30 35 40 LEFT 10 5 30 40 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. In the March 2011 Travel Board hearing the Veteran reported that he was exposed to noise over his years of service on B-52s. He noted that the Kaiser Permanente testing showed bilateral hearing impairment. He indicated that he perceived difficulty hearing during service and progressive difficulty over the years since service. In April 2011 private audiologist G. J. S., Au.D., wrote that the Veteran had bilateral sensorineural hearing loss. "Based on this hearing evaluation and on [the Veteran's] history of military noise exposure during the Viet Nam war," Dr. S. wrote, "it is my opinion that his hearing loss is more likely than not related to his military experience." On VA audiology examination in November 2012 the examiner reported having reviewed the Veteran's claims file. On testing pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 30 40 35 LEFT 15 10 35 45 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. The examiner expressed the opinion that it is not at least as likely as not that the Veteran's hearing loss is caused by or a result of events during service. The examiner discussed Dr. S.'s opinion. The examiner noted that it does not appear that Dr. S. had access to the Veteran's military records, as his service treatment records show normal hearing bilaterally at the time of the Veteran's separation from service. The examiner noted that in fact testing showed that the Veteran had normal hearing through 4000 Hertz well after service, in 2008. "If there is a current hearing loss and hearing was clinically normal at separation," the examiner wrote, "there is no scientific evidence to support a nexus between this current hearing loss and events during service." The Veteran's service duties as an airplane navigator exposed him to noise. He indicates that he perceived difficulty hearing during service and thereafter. The Veteran is competent to report his perception of his hearing during and after service. His statements have not contained any inconsistencies, and the Board finds that his account of his perceptions is credible. While he could form and can recall perceptions, he could not then or cannot later measure or otherwise quantify his auditory thresholds and speech recognition ability during or after service. The Board finds that the actual levels of the Veteran's hearing are not subject to lay measurement, as audiological tests are required to establish such assessments. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Repeated testing during service showed that the Veteran's hearing was at levels that do not constitute disability for VA benefits purposes. Even in 2008, many years after service, testing did not show disabling hearing impairment. The Board finds that the test results, and not the Veteran's perceptions, are the measure of the precise levels of the Veteran's hearing during and after service. Thus, even though the Board accepts the Veteran's account that he perceived difficulty hearing during and after service, that account does not help his service connection claim, because he did not have objectively measured disabling hearing impairment during service or for many years after service. For these reasons, service connection is not warranted based on continuity of symptomatology. Regarding Dr. S.'s opinion as to the likelihood that the Veteran's hearing loss is related to noise exposure during service, the Board notes, as the 2012 VA examiner did, that the opinion fails to explain testing that showed normal hearing during service and at separation from service. Dr. S. did not indicate whether she reviewed any of the test reports from the Veteran's service. The Court has held on a number of occasions that a medical opinion which is premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"). The account of the Veteran's perception of difficulty hearing during service and thereafter does not gain in probative value by virtue of being repeated by a physician who otherwise has no knowledge of the history in the matter. Id. As the VA examiner also pointed out, Dr. S. did not account for the fact that the Veteran still had normal hearing in 2008 - decades after service. While there is no difference in the competency level of Dr. S. and the VA examiners, as they are audiologists, there is a difference in the probative value of their opinions. Although review of a claims file is not always needed, where, as here, there is significant relevant information gained from such a review, then an opinion given without access to this information is simply not as well informed. Both the 2008 and 2012 VA examiners found the repeated normal hearing tests during service to be significant in rendering their opinions. Also, Dr. S. makes no mention of the Veteran's post-service noise exposure, which the 2008 VA examiner found probative. Therefore, the preponderance of the more persuasive evidence shows that disabling hearing impairment did not become manifest during service or for many years after service and is not related to in-service noise exposure. The Board therefore denies service connection for the Veteran's bilateral hearing loss. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs