Citation Nr: 1320983	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  08-36 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for hearing loss of the right ear.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The Veteran had active service from March 1970 to March 1972.

This claim comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal of a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  In that action, the RO denied entitlement to service connection for hearing loss of both ears and for post-traumatic stress disorder.  

Following a review of the Veteran's claim, the Board, in September 2010, issued a Decision/Remand.  In that action, the Board denied service connection for left ear hearing loss; and remanded the issues involving entitlement to service connection for right ear hearing loss and a psychiatric disorder.  The issues were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.  The purpose of the remand was to obtain additional medical evidence with respect to both claimed disorders.  

Subsequently, the AMC granted the claim for entitlement to service connection for PTSD.  The grant of service connection constituted a full award of the benefit sought on appeal as to that issue.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  Thus, that issue is no longer before the Board.  Id.


FINDINGS OF FACT

A hearing loss of the right ear did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited in service or to a compensable degree within the first post service year. 


CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 3.385 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veteran contends that he has developed a right ear hearing loss disability as the result of exposure to noises while acting as a firefighter in service. 

The VCAA describes VA's 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims, hereinafter the Court, held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the Veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

VA satisfied its duty to notify by means of a letter sent to the Veteran from the agency of original jurisdiction (AOJ) in January 2008.  This letter informed the Veteran what evidence was required to prevail on his claim for service connection, and of his, and VA's, respective duties for obtaining evidence.  The information provided also notified the Veteran how a disability rating and an effective date for the award of benefits would be assigned if service connection is awarded, in compliance with Dingess.

VA has informed the Veteran which evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf.  In this regard, VA sent the Veteran VCAA notice, which spelled out the requirements of the VCAA and what the VA would do to assist the Veteran.  The VA informed the Veteran that it would request records and other evidence, but that it was the Veteran's responsibility to ensure that the VA received the records.  The Veteran was told that he should inform the VA of any additional records or evidence necessary for his claim. 

VA has also fulfilled its duty to assist.  In this instance, VA obtained the medical treatment records identified as relevant by the Veteran and those other records that the VA was made aware thereof.  VA also has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013).  

The Veteran has undergone two VA audiological examinations and the results of those examinations are of record.  Audiological testing was accomplished and an opinion was ultimately provided, which considered an accurate history was definitive and well supported by a rationale.  The examinations are adequate for the Board to render an informed decision.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that the VA has complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim.

In pertinent part, the Board's remand was to provide the Veteran with a new VA examination and obtain medical opinions that reflected consideration of the entire record.  In November 2010, the Veteran received a new VA examination.  In compliance with the remand instructions, the examiner reviewed the entire record.  The examiner did not discuss all of the specific history noted in the Board remand or comment on all of the Veteran's noise exposure.  These lapses were not prejudicial, because the examiner found that on testing, the Veteran did not have current hearing loss disability as defined by VA.  Consideration of additional history could not have helped the Veteran, absent a showing of current disability.  There was substantial compliance with the remand instructions.  The Board notes that the Court has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The record does not suggest that there is any additional notice or assistance that would be reasonably likely to substantiate the claim.

Service Connection

Under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(b) (2012), service connection will be granted for disability that results from, or is aggravated by, an in-service disease or injury.

Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology. 

Service connection will be presumed for chronic diseases that become manifest to a compensable degree within one year of service or in service and at any time thereafter.  38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a).  Sensorineural hearing loss is considered a chronic disease on the basis that it is an organic disease of the nervous system.  VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements in a chronic disease claim is through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013).  

Continuity of symptomatology may be shown by demonstrating "(1) that a condition was noted during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  See Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  

In making all determinations, the Board must fully consider the lay evidence of record.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

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.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. 

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 United States Court of Appeals for the Federal Circuit, 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).  The Court 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, 2 Vet. App. at 618. 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran.  See id. at 303-04. 

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 

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 (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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).

Facts and Discussion

The Veteran's service treatment records show that the Veteran was seen in August 1971.  It was noted that he "claims he can hear but can't distinguish what is being said" in the right ear.  This symptom had been present for two weeks.  A physical examination revealed no abnormality.  It was noted that he was referred to audiology.  No hearing test results were reported, but it was noted that "audio today" was within normal limits.  There were no other reports of hearing difficulty during service.

On examination for release from active duty in February 1972, the Veteran's ears were reportedly normal.  Audiology testing yielded the following results in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
5
10
LEFT
20
5
0
10
0

The record does not reveal any findings regarding hearing loss within one year of the appellant's discharge from service.

The Veteran did not apply for VA compensation benefits for hearing loss in the right ear; and there is no clinical evidence of hearing loss disability for several decades after service.  In fact, the record is silent for any type of complaints involving hearing loss for the period extending from 1972 to 2008 - a period of 36 years.  

The Veteran did not mention hearing loss on his initial claim for VA benefits, received in July 2005.  In October 2007, the Veteran submitted another claim for VA benefits, but again did not mention hearing loss.  Similarly, VA treatment records dated from 2004 to 2008 contain no reports of hearing loss.

In November 2007, the Veteran submitted a claim for service connection for hearing loss.  He stated that he had trouble with hearing in service and continued to have trouble understanding what people were saying.

In conjunction with his claim for benefits, a VA audiological examination was accomplished in October 2008.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
50
25
LEFT
20
20
20
35
30

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear.  While the examiner noted that the Veteran had sensorineural hearing loss in the right ear, he opined that this was not related to service.  The rationale was that service treatment records showed normal hearing.  

A second examination was provided in November of 2010.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
20
20
LEFT
10
15
20
30
35

Speech audiometry revealed speech recognition ability of 96 percent in both ears.  The examiner concluded that any found hearing loss was not related to or caused by any acoustic trauma that may have occurred while the Veteran was on active duty.  It is further noted that the examiner indicated that the Veteran's hearing acuity in the right ear was "normal."  

Clarification of the information contained in the 2008 and 2010 examination reports was sought via the Board's Remand of August 2012.  Such clarification was provided in September 2012.  The reviewer provided the following:

1.  Right ear complaints within the service medical record that the veteran can "hear but not distinguish" speech on 8/12/1971.

Service medical records indicated that an audiometric evaluation was needed to address this complaint.  Although an audiogram from1 1971 was not located in the service medical record, the letters "WNL" were written net to the request for examination.  This would indicate that a hearing test was performed and was "within normal limits".  Furthermore, the healthcare provider noted that the ear canals were clear and tympanic membranes are "still grey and good light reflex".

2.  The October 2008 VA evaluation documents right ear hearing loss per VA standards.

Audiometric evaluation dated 10/8/2008 revealed normal hearing sensitivity 500 Hertz through 2000 Hertz sloping to a moderate sensorineural hearing loss at 3000 Hertz rising (falling (sp))  to within normal limits at 4000 Hertz in the right ear.  The left ear revealed normal hearing sensitivity 500 Hertz through 2000 Hertz slopping to a mild sensorineural hearing loss at 3000 and 4000 Hertz.  The current examiner is not denying that hearing loss was found during the 2008 audiometric examination.

3.  The examiner acknowledges that the veteran is competent to report his symptoms and history.  The examiner also acknowledges that the veteran was likely exposed to noise during military service.  However, the original opinion . . . has not changed.  It is the examiner's opinion that the veteran's hearing loss and tinnitus was not caused by or a result of acoustic trauma during military service.

Entrance evaluation revealed a mild hearing loss at 500 Hertz only in the left ear.  All other thresholds were within normal limits bilaterally. Separation evaluation revealed normal hearing sensitivity at ALL test frequencies bilaterally.  Although the veteran was exposed to noise during military service, it DID NOT result in acoustic trauma or hearing loss in either ear.  Separation evaluation indicated normal hearing sensitivity bilaterally.  No significant change in thresholds for either ear was identified when comparing entrance and separation evaluations.  With the exception of a 5dB change (test/retest) at 4000 Hertz in the right ear, all other thresholds stayed the same or actually improved upon separation.  Again, the Institute of Medicine concluded that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existences of delayed-onset hearing loss.  There is not sufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop much later in life, long after cessation of noise exposure.  The available anatomical and physiologic evidence suggests that delayed post exposure noise induced hearing loss is not likely.  Thus any hearing loss found following separation in March 1972 would not be due to acoustic trauma during military service.

The veteran did not report hearing loss or tinnitus during a medical evaluation dated 4/16/2004 at the Kansas City VAMC.  He also denied hearing loss on 1/17/2008 . . . 


Analysis

Although the most recent VA examination did not show right ear hearing loss for VA purposes, the October 2008 examination did show such hearing loss.  As such, a current disability is demonstrated.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

The Veteran has reported, and VA examiners have acknowledged, that he had in-service noise exposure.  The August 1971, service treatment record also documents difficulty at one point in speech discrimination.  This evidence serves to demonstrate an in-service injury.

The remaining question is whether there is a nexus between the current disability and an in-service injury.  The examiner who provided the October 2008 examination provided a negative answer to this question, but did not fully explain the basis for this opinion.  The examiner relied on the normal hearing tests in service, but did not explain why the normal testing meant that there could be no link between the current hearing loss and service.  The examiner also did not consider pertinent facts such as the Veteran's documented complaints in service or his reports as to history.  Hence, this opinion is of limited probative value.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008).

The audiologist who provided the November 2010, VA examination and opinion also provided a negative opinion.  This opinion included a thorough consideration of the entire history, including the Veteran's reports, the complaints in service and test results.  The examiner provided a definitive opinion, and provided extensive reasoning that considered the state of current medical literature.  The opinion is; therefore, of significant probative value.

The Veteran has asserted that his current hearing loss is the result of in-service noise exposure or is related to the difficulty he reported in August 1971.  As a lay person; he lacks the expertise to say that his current hearing loss is related to in-service events rather than other causes.  As such these opinions do not constitute competent medical evidence.

The Veteran's statements could be read as reporting a continuity of symptomatology since service.  He is competent to make such reports, because hearing loss is a symptom that a lay person could perceive.  Nevertheless, the Board must determine the credibility of his reports.

His reports of a continuity of symptomatology are inconsistent with the record.  The contemporaneous record shows that the Veteran had a number of opportunities to report hearing loss in service and in the years thereafter, but did not do so.  The separation examination showed normal hearing and documents no complaints.  The Veteran submitted several claims for VA benefits in which he listed disabilities for which he was claiming service connection, but did not mention hearing loss and he was seen for VA treatment for a number of years without voicing complaints referable to his hearing.

Although the appellant has insinuated that he had little exposure to hazardous noise after service, he has also reported post-service employment as a fork lift operator, warehouse worker, and in other factory and labor jobs.  In other words, he was exposed to two years of engine noise aboard a ship, and nearly forty years of sounds produced in office and industrial settings.  

From shortly after his discharge from service until 2007, the appellant was silent as to any suggestion that he suffered hearing loss of the right ear while on active duty.  The Veteran was aware of the VA compensation program and submitted several claims for benefits over the years.  He never mentioned a hearing loss.  It seems likely that if the disability was present from service, the Veteran would have claimed benefits at an earlier date when filing other compensation claims.  It was not until nearly thirty-five years after his discharge from service that he asserted that his hearing loss was related to service.  Given the contradictory contemporaneous record, his reports of a continuity of symptomatology are not deemed credible

The Veteran has also reported that he had no hearing tests until he filed his claim for service connection.  Moreover, there is no medical evidence showing any complaints involving hearing loss prior to the audiological examination that was accomplished in 2008.  This establishes that there is no other evidence of a continuity of symptomatology.  

The record shows that while the Veteran voiced complaints on one occasion in service, sensorineural hearing loss was not identified.  There is also no evidence of such hearing loss to a compensable degree within one year of separation from service.  Thus, service connection on the basis of a presumption of service connection is not warranted.  38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2012).  

Absent competent and credible evidence of a link between current right ear hearing loss and service, the weight of the evidence is against the claim.  Reasonable doubt does not arise and the claim is denied.







							(CONTINUED ON NEXT PAGE)
ORDER

Entitlement to service connection for hearing loss of the right ear is denied.  


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs