Citation Nr: 1322080 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 00-02 244A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO), in which pertinent part, denied the benefit sought on appeal. In November 2011, the Veteran testified before the undersigned Veterans Law Judge during a hearing held at the RO. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. The Board remanded the matter on appeal twice to the RO (via the Appeals Management Center (AMC)) for additional development. In May 2012, the Board instructed the AMC to provide the Veteran with a new VA audiology examination in order to determine the nature and etiology of his hearing loss claim. When the matter returned to the Board in October 2012, the Board felt that the medical opinion in contained the report of a June 2012 VA examination was inadequate. The Board remanded the matter again to obtain a supplemental VA medical opinion on the etiology of the Veteran's hearing loss. An October 2012 supplement VA medical opinion report is now contained in the claims folder. As there has been compliance with the Board's remand instructions, no further action is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Board acknowledges that the Veteran's Representative has submitted additional documents, without a waiver, that demonstrates that the Veteran had service in Vietnam and he was exposed to loud noises from combat and firearms. However, the Board finds that the newly obtained evidence is essentially duplicative in the sense that it merely confirms that confirms the Veteran's inservice acoustic trauma which was considered by the RO in the initial adjudication of the claim. Moreover, this additional evidence does not address the crucial matter at hand, a medical nexus between the Veteran's hearing loss disability and his in-service noise exposure. As the new evidence does not include or suggest an etiology of the Veteran's bilateral hearing loss disability, the Board finds a remand for RO consideration of the newly acquired evidence would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided); see also 38 C.F.R. § 19.31(b)(1). Consequently, the Veteran's claim is ready for appellate review. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board notes that additional evidence contained in a temporary claims folder at the RO has recently been associated with the Veteran's claims folder. In an October 2011 statement, the Veteran indicated his desire to submit claims for entitlement to service connection for peripheral neuropathy in the right and left lower extremities, entitlement to an increased evaluation for lumbosacral strain disability, posttraumatic stress disorder, and diabetes mellitus disability, as well as a claim for entitlement to a total disability rating due to individual unemployability (TDIU). In the May 2012 Board decision, the Board previously adjudicated the Veteran's claims for increased ratings for his PTSD and diabetes mellitus disabilities. Also, in that May 2012 decision, the Board discussed how a claim for TDIU was not on appeal as the Veteran had already granted TDIU by a rating decision in July 2007, effective from November 17, 2006, and he failed to submit a timely disagreement to the effective date assigned in that rating decision. However, the other issues of entitlement to service connection for peripheral neuropathy in the right and left lower extremities as well as entitlement to an increased evaluation for lumbosacral strain disability have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of medical and lay evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed bilateral hearing loss disability and his military service. CONCLUSION OF LAW A bilateral sensorineural hearing loss disability was not incurred in, or aggravated by active military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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 of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the RO provided the Veteran with the notice required under the VCAA and under Dingess by a letter mailed in November 2007. Subsequently, in June 2009, the RO adjudicated the Veteran's claims in the first instance. The Veteran filed a timely appeal as to this June 2009 rating decision. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his service-connection claim for a bilateral hearing loss disability. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his lay statements of argument, and VA treatment records have been obtained. Pertinently, the Veteran has not indicated that any other VA treatment reports relevant to his hearing loss claim currently exist, nor has he requested that the VA attempt to obtain any other private treatment records. Pursuant to the Board's June 2012 and October 2012 remand directives, a June 2012 VA examination was conducted and an October 2012 supplemental VA medical opinion was obtained in conjunction with this appeal. The Board observes that collectively the findings contained in these reports are more than adequate to adjudicate the Veteran's claim. The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnosis consistent with the remainder of the evidence of record. The examination report included audiological testing of the Veteran, to include pure tone threshold readings as well as speech recognition scores using the Maryland CNC test. In the October 2012 VA supplemental medical opinion, the examiner reviewed the entire claims folder, including the findings from the June 2012 VA examination report, and the examiner provided an opinion addressing whether the Veteran's hearing loss was related to in-service noise exposure. The Board therefore concludes that these 2012 reports, considered together, are adequate for rating purposes. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal have been met. 38 C.F.R. § 3.159(c)(4). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103. He has retained the services of a representative, and testified before the undersigned at the November 2011 hearing. Accordingly, the Board will address the claim on appeal. 2. Service Connection Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss disability, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. When 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. See Hensley, supra. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran contends that his current bilateral hearing loss disability resulted from in-service noise exposure while performing his duties as a gunner in an artillery unit. He reports that he first noticed a decline in his hearing during his period of service, and his hearing loss has become progressively worse over time since then. He denies any post-service occupational noise exposure. As noted above, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. See Hickson, 12 Vet. App. at 253. With respect to Hickson element (1), current disability, it is undisputed that the Veteran currently has a bilateral hearing loss disability for VA purposes. Audiometric test results from the March 2009 and June 2012 VA examinations demonstrated that the Veteran had pure tone threshold values over 40 decibels at four frequencies in both ears. See the March 2009 VA examiner's report, page 2; and the June 2012 VA examiner's report, page 2; see also 38 C.F.R. § 3.385. Accordingly, current hearing loss disability is demonstrated by the record. Hickson element (1) is therefore satisfied as to both issues. With respect to Hickson element (2), in-service disease or injury, the Board will separately address disease and injury. Concerning in-service disease, the Veteran's service treatment records do not reflect that the Veteran had hearing loss disability for VA compensation purposes at any point during his period of service. (The Board notes that the prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA) and since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In reviewing the service treatment records, the Board converted the ASA standards to ISO-ANSI. See 38 C.F.R. § 3.385. The Veteran's January 1967 entrance examination shows, after the conversion, that the Veteran had some indication of hearing loss in both ears (25 decibels at 1,000 Hertz in the right ear, and 35 and 25 decibels at 500 and 1, 000 Hertz, respectively, in the left ear). See Hensley v. Brown, 5 Vet App. 155 (1993) (threshold levels of 20 or higher indicate some degree of hearing loss). Albeit these findings are insufficient for establishing a hearing loss disability so as to remove the presumption of sound hearing upon his enlistment. See 38 U.S.C.A. §§ 1111, 1137. The examination report at service discharge in December 1968 shows that the Veteran's hearing thresholds were within normal limits. Although the audiometric findings continue to reflect an indication of hearing loss with 20 decibels at 500 Hertz in both ears, these findings are more indicative of an improvement in the Veteran's hearing loss since his entrance into service. Ultimately, at no point during the Veteran's period of service, does any of his auditory threshold results reflect at least 40 decibels of any applicable frequency; auditory thresholds of at least 26 for at least here of the applicable frequencies; or speech recognition scores using the Maryland CNC Test of less than 94 percent. The Veteran also denied any hearing problems on his associated report of medical history. The Board adds that there is no medical evidence of record demonstrating that the Veteran developed bilateral sensorineural hearing loss as defined by VA under 38 C.F.R. § 3.385 within his first year following his separation from service in December 1968. Rather, the first medical evidence of any hearing loss disability is not show until 1984, when VA audiometric testing results demonstrate left ear hearing loss disability (but not right ear hearing loss disability). As such, service-connection for hearing loss may not be presumed under the provisions of 38 C.F.R. § 3.309(a). Concerning in-service injury, the Board concedes that the Veteran was exposed to loud noises during his period of service as a gunner in an artillery unit. The Veteran's service personnel records confirm that his military occupational specialty (MOS) was as a cannon man and a gunner in an artillery unit. Based on the Veteran's MOS, his exposure to extreme noise in service is highly probable. Given the Veteran's MOS, the Board concedes that the Veteran was exposed to extreme noise in service. Hickson element (2) is therefore satisfied as to both issues as well. With respect to crucial Hickson element (3), nexus or relationship, the only adequate medical opinion of record addressing the etiology of the Veteran's current hearing loss disability is that of the October 2012 VA examiner, who after reviewing the Veteran's claim folder, opined that it is less likely as not that the Veteran's bilateral hearing loss is related to or caused by military noise exposure. In formulating this opinion, the October 2012 VA examiner recognized the Veteran's service as a gunner in an artillery unit and his history of in-service noise exposure, but the examiner placed more significance on the fact that the Veteran's separation examination showed findings within normal limits and there was no indication of a significant shift in pure tone thresholds when compared to his entrance examination. See the October 2011 VA examiner's report, page 2. There is no medical opinion of record contrary to that of the October 2012 VA examiner. The Board has considered the Veteran's lay assertions that his hearing loss first manifested during his period of service and his current disability is related to his inservice noise exposure. Although the Veteran is competent to attest to facts surrounding his claim, such as symptomatology he observed during service and since service, as a lay person, he is not competent to offer opinions that require medical knowledge. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, VA regulations require that a hearing loss disability meets the requirements under 38 C.F.R. § 3.385. Notably, these audiometric findings cannot be determined by the Veteran's own observations of decreased hearing acuity. Further, the question of whether a disability is etiologically related to service is a medical determination that requires medical expertise. While the Veteran may believe that this is the case, he does not have medical training and his statements as to medical etiology are simply not competent or persuasive evidence. As noted above, under § 3.303(b), an alternative method of establishing the third element of Hickson is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The Board notes that in his November 2011 testimony, as well as in various correspondences, the Veteran reported that he first noticed a decline in his hearing during his period of service. However, the audiometric findings from his period of service demonstrate that his hearing acuity actually improved from the time of his enlistment until his separation from service in 1968. Although the Veteran is competent to describe symptoms of impaired hearing and his statements are credible, a hearing loss disability under 38 C.F.R. § 3.385 is not a condition under case law that has been found to be capable of lay observation. Notably, a determination of a hearing loss disability under 38 C.F.R. § 3.385 is based on audiometric results and therefore is medical in nature, that is, not capable of lay observation, and competent medical evidence is needed to substantiate the claim. See Savage, 10 Vet. App. at 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The medical evidence does support the Veteran's contentions that his hearing loss has progressively worsened over the years since his separation from service. VA audiology treatment record starting 1984 reflect complaints of hearing problems and show that the Veteran had left ear hearing loss disability (but not right ear hearing loss disability). These medical records support the Veteran's reports that he has experienced a long history of progressive decline in his hearing. However, the absence of hearing loss complaints for more than a decade after the Veteran's separation in 1968 weighs heavily against a finding of continuity. See Buchanan, 451 F.3d at 1337 [The Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record"]; Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. As discussed above, the only competent medical nexus evidence of record weighs against a finding that the Veteran's bilateral sensorineural hearing loss is related to his military service. Moreover, the October 2012 VA examiner considered the Veteran's reports of hearing loss and his inservice exposure to loud noises from gunfire. The October 2012 VA examiner's opinion was based on a review of the medical findings contained in the claims folder and those determined after the May 2012 clinical evaluation. In short, while the Veteran had exposure to noise during service, chronic hearing loss disability was not shown during service, at separation, or for decades thereafter. The Veteran's current hearing loss has not been related by competent medical evidence to any aspect of the Veteran's period of service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral sensorineural hearing loss is denied. ____________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs