Citation Nr: 1320947	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  07-28 952	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina



THE ISSUE

Entitlement to service connection for claimed hearing loss.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel



INTRODUCTION

The Veteran performed active duty from July 1968 to June 1970 with documented service in the Republic of Vietnam from November 1968 to November 1969.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the RO.  

In September 2011, the Board remanded the claim to the RO for further development.  

A review of the Virtual VA paperless claims processing system reveals a June 2013 post-remand brief submitted by the Veteran's representative that is pertinent to the issue on appeal.



FINDINGS OF FACT

1.  The Veteran currently is not shown to have a right ear hearing loss disability for VA compensation purposes.  

2.  The currently demonstrated left ear hearing loss disability is shown as likely as not to be due to the exposure to hazardous and harmful noise levels that began during the Veteran's period of active service, including active duty under combat conditions in the Republic of Vietnam.


CONCLUSION OF LAW

1.  By extending the benefit of the doubt to the Veteran, his left ear hearing loss disability is due to disease or injury that was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).  

2.  The claim of service connection for a right left ear hearing loss disability must be denied by operation of law.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim.  38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002).  

In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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.  The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008.  See 73 Fed. Reg. 23,353-23,356.  The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed.  This amendment applies to all applications pending on, or filed after, the regulation's effective date. 

The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004).  

However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant.  Id. at 121.  

Further, a defect in the timing of the notice may be cured by sending proper notice prior to a readjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). 

The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless.  See VAOGCPREC 7-2004.

The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements.  Id. at 1320.  

However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record.  See Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006).   

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim.  

Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded.  Id. at 486.     

In this case, the Veteran was sent a letter in October 2006 that explained how VA could help him obtain evidence in support of his claim.  It also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as explained how VA assigns ratings and effective dates for service connected disabilities.  

VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In connection with the current appeal, VA has of record service treatment records, VA treatment records, and statements from the Veteran.  The Veteran has not identified any other information in support of his claim.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

In this case, the Veteran was afforded VA examinations in February 2007, October 2007 and November 2011. 

In September 2011, the Board remanded the issue to the RO to afford the Veteran a medical examination containing sufficient detail to decide the claim.  Specifically, the Board found that additional clarification was necessary to discern whether the Veteran had a hearing loss for VA compensation purposes.  The Board noted that the February 2007 and October 2007 VA examiners' opinions differed as to whether the Veteran met the requirements for a hearing loss disability.  

In accordance with the remand directives, the Veteran was provided another VA examination in November 2011.  There has been no allegation that the examination was inadequate. 

Moreover, the Board finds that the November 2011 VA medical opinion obtained in this case is adequate, as it was predicated on a full reading of the available service treatment records as well as the post-service medical records contained in the Veteran's claims file.  

It considered all of the pertinent evidence of record and provides a complete rationale for the opinions stated, relying on and citing to the records reviewed and the Veteran's statements.

Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).

VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and a Supplemental Statement of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. 

The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  

For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 


Laws and Regulations

The Veteran asserts that his hearing loss is the result of his military service.  Specifically, he reports having hearing problems that are related to the continuous exposure to loud noises, including large guns, mortar shelling, and artillery fire, during his service.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  

Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d). 

For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 


Factual Background and Analysis

A May 1968 pre-induction audiogram revealed pure tone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
0
0
0
N/A
5
N/A
LEFT
0
0
5
N/A
10
N/A

A May 1970 separation audiogram revealed pure tone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
6000
RIGHT
0
5
0
N/A
5
N/A
LEFT
5
0
5
N/A
10
N/A

In his September 2006 claim, the Veteran reported that he was never treated for his claimed hearing loss; rather, he "just kept asking people to repeat what they [said]."

In his claim and an associated statement, the Veteran asserted that his hearing loss was caused by noise exposure sustained as a gunner on the 105 millimeter howitzer and from mortars and artillery fire during training and service in the Republic of Vietnam.

During a February 2007 VA examination, the Veteran reported having military noise exposure as a gunner operating the 105 millimeter howitzer and post-service occupational noise exposure as an employee at a collision repair shop performing auto body and fender work.  

An audiogram revealed pure tone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
Average
RIGHT
10
20
25
25
30
25
LEFT
15
15
20
25
45
26.25

Speech recognition scores were 94 percent in the right ear and 84 percent in the left ear.  

The examiner noted that the audiological test results showed findings of a mild sensorineural hearing loss at 4000 Hertz in the right ear and moderate sensorineural hearing loss in the left ear at 4000 Hertz.

In a September 2007 statement, the Veteran again reported being exposed to loud noises on a daily basis since he returned from Vietnam.  He stated that "[t]he only exposure to loud noise [he had had] was as a gunner on 105 artillery in Vietnam."

During an October 2007 VA examination, the Veteran reported that, in addition to his service as an artillery gunner in Vietnam from 1968 to 1969, he had been exposed to military noise as a rifle instructor at Fort Jackson.  He stated that he was right handed and wore ear protection.  

Prior to service, the Veteran related that he worked in a cotton mill inspection room with low noise exposure for less than one year, repaired aircraft bay doors for one year, and worked in a food store.  Following service, he indicated that he worked as a milkman and painted car bodies.  

An audiogram revealed pure tone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
Average
RIGHT
25
15
20
20
20
18.75
LEFT
20
15
20
20
35
22.5

Speech recognition scores were 96 percent in the right ear and 100 percent in the left ear.  

The examiner noted that the audiological test results showed mild sensorineural hearing loss in the left ear.  He noted that the February 2007 VA examiner reported the Veteran had normal hearing, bilaterally.  However, he noted that the Veteran was in combat and he served as a rifle instructor following his combat service.  He opined, therefore, that the mild high frequency left ear hearing loss was at least as likely as not related to combat and right-handed gunfire in the military service.  

In a January 2008 statement, the Veteran noted that, as a gunner, he stood on the left side of the howitzer and turned to the right to check to see whether the assistant gunner was set and looked back to ensure the loader was out of the way, putting his left ear to the breach of the gun and exposing both ears to the loud noise upon firing the weapon.

A November 2011 VA examination report included an audiogram that revealed pure tone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
Average
RIGHT
20
20
20
15
20
19
LEFT
20
20
25
30
40
29

Speech recognition scores were 96 percent in the right ear and 94 percent in the left ear.  

Significantly, the examiner noted that the audiological test results showed right ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher that did not meet the criteria to be considered a disability for VA compensation purposes.  

The VA examiner opined that the testing showed left ear hearing loss in the frequency range of 500 to 4000 Hertz; however, he opined that the hearing loss was not at least as likely as not caused by or a result of an event in military service.

The examiner noted that the Veteran's entrance and separation examinations showed normal hearing from 500 to 4000 Hertz.  He indicated that the Veteran served in Vietnam for one year as a gunner where he was exposed to artillery fire.  He also noted that the Veteran was a rifle instructor after his service in Vietnam.  The Veteran reported that he did not wear ear plugs as a rifle instructor.  

The examiner noted that the Veteran had a history of occupational noise working in an auto body shop for over 46 years.  The Veteran reported using various power tools, including grinders and buffers; pneumatic tools, including paint sprayers; and other air compressed tools.  He also related a history of recreational noise using a lawn mower without hearing protection.  He denied other recreational noise exposure, including hunting or shooting.  

The examiner opined that, even though the Veteran had a history of military noise exposure, his hearing was normal in both ears with no threshold shift noted in either ear at the frequency most commonly affected by noise exposure at separation from service.  He noted that the Veteran had a history of over 40 years in the auto body industry with exposure to occupational noise.  

Therefore, the examiner opined that "[d]ue to the normal audiological findings in the 4000 [Hertz] region at separation in 1970, the limited time duration in the military (1968-1970) as compared to his civilian occupational career, and the lengthy exposure to occupational noise (40+ years) in the auto body repair industry, [he was of the] opinion that the [V]eteran's bilateral hearing loss [was] less likely as not caused by or a result of an event in military service."  He also noted that medical literature did not support the delayed onset hearing loss due to noise exposure.

In considering the evidence of record in light of the applicable law and regulations, the Board finds the evidence to be in relative equipoise in showing that the Veteran suffers for a left ear hearing loss disability that as likely as not is due to his extensive noise exposure during service, including while serving under combat conditions in the Republic of Vietnam.  

The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another.  Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record).  The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions.  Flash v. Brown, 8 Vet. App. 332 (1995). 

The October 2007 VA examiner opined that it was at least as likely as not that the Veteran's left ear hearing loss was due to his military noise exposure, the examiner tended to discount the Veteran's reported occupational noise exposure following service.  

To the extent the Board finds the November 2011 VA examiner's opinion found no nexus between the Veteran's current left ear hearing loss and events of his military service, this examiner appears to have fully discounted his significant service noise exposure for two years, including in the Republic of Vietnam.

The Board has also considered the Veteran's contention that his hearing loss developed as a result of military noise exposure.  The Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed or are within the realm of his personal knowledge as well as to establish that he had hearing problems that were present during and continued after service.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

In resolving all reasonable doubt in the Veteran's favor,  service connection of a left ear hearing disability is granted in this case.  

However, as the Veteran currently is not shown to suffer from a right ear hearing loss disability for VA compensation in connection with any of the VA examinations, the claim of service connection for right ear hearing loss must be denied by operation of law.  



ORDER

Service connection for a left ear hearing loss disability is granted

The claim of service connection for a right ear hearing loss is denied by law.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals


Department of Veterans Affairs