Citation Nr: 1322104 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-19 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1955 to August 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a hearing before the undersigned Veterans Law Judge in June 2009. A transcript of the hearing is of record. The Board remanded this matter in August 2009 and October 2012 for further development. After completing the requested actions to the extent possible, the Appeals Management Center (AMC) continued the denial of the claim as reflected in the April 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Right ear sensorineural hearing loss was not diagnosed during military service or within one year after military service and the preponderance of the evidence shows that the Veteran's current right ear hearing loss is not etiologically related to his military service. CONCLUSION OF LAW A right ear hearing loss disability was not incurred in or aggravated by active military service, nor may it be presumed related to service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that a June 2005 letter satisfied the duty to notify provisions and it was provided to the Veteran prior to the initial decision by the AOJ. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for hearing loss. The letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records and records from other Federal agencies. The Board observes that the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim; however, such error is harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed disorder. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, VA examination reports dated in April 2009 and November 2012 and a transcript of the June 2009 Board hearing. The November 2012 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiner discussed the relevant evidence of record. Following the above, the examiner provided a diagnosis and a nexus opinion, which appears to be based on the evidence of record and medical studies. Accordingly, the Board finds the November 2012 VA examination is adequate for adjudication purposes. In addition, as noted in the Introduction, this issue was previously remanded in August 2009 in order to contact the Veteran so that he may provide the approximate dates and locations of all VA treatment for hearing loss and to obtain any records identified by the Veteran to include a VA audiological examination conducted in February 2009. A letter dated in October 2009 asked the Veteran to provide the approximate dates and locations of all VA treatment since 1975. The Veteran provided a response in October 2009. The AMC contacted the VA Medical Centers indicated in the Veteran's response and requested copies of the Veteran's treatment records for the dates specified by the Veteran. The claims file contains the treatment records that were available at these facilities during the time period specified by the Veteran. With respect to the February 2009 VA audiological examination, the claims file contains a July 2011 memorandum that shows a formal finding of unavailability of the February 2009 VA examination with a list of efforts to obtain this record. Furthermore, a September 2009 VA treatment record shows that the audiologist who conducted the February 2009 examination documented that she considered the results invalid and that is why he was retested in an April 2009 examination. She noted that the results of the February 2009 examination were not kept or recorded, because they were invalid. The claim was remanded again in October 2012 to obtain any outstanding Social Security disability records and to provide a VA audiological examination and opinion. The AMC contacted the Social Security Administration (SSA) in February 2013 and requested copies of the Veteran's Social Security disability records. A response from SSA in March 2013 reveals that the records were destroyed. The claims file contains a November 2012 VA examination report that documents an evaluation of the Veteran's hearing loss and addresses the question raised by the Board with a supporting explanation. Accordingly, the Board finds that there has been substantial compliance with the August 2009 and October 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the claims file contains the Veteran's statements and testimony in support of his claim. The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran contends that he currently has right ear hearing loss related to military service. Specifically, he asserts that he was exposed to loud noise from airplanes while working as a personnel specialist in the airplane hangar with no ear protection. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a), such as sensorineural hearing loss, which is considered an organic diseases of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); M21-1MR, Part III, Subpart iv, Chap 4, Section B, para. 12(a). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 (2012). Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that threshold levels of above 20 decibels indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing disability under VA regulations. As noted above, hearing loss is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. An April 2009 VA audiology examination report shows auditory thresholds of 40 decibels (dB) or higher in at least one of the required frequencies in the right ear. The VA examiner noted that the audiological evaluation revealed mild to moderately severe high frequency sensorineural hearing loss in the right ear. As such, the evidence shows that the Veteran has a current right ear hearing loss disability. Initially, the Board observes that sensorineural hearing loss (as an organic disease of the nervous system) may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). The Veteran contends that his right ear hearing loss began in service. See April 2005 claim. The Board notes that prior to November 1967, the service department reported audiometric test results under the American Standard Associates (ASA) scale. The Department of Defense adopted the International Standards Organization (ISO) scale in November 1967. In July 1966, VA adopted the ISO standard, which is the standard applied in 38 C.F.R. § 3.385. It is assumed that unless otherwise specified that any audiometric test results prior to November 1967 are reported using the ASA scale. Therefore, to compare the threshold hearing levels to later examinations, the ASA units in the Veteran's service treatment records must be converted to the International Standard Organization (ISO) units. The original ASA units will be shown in parenthesis. The service treatment records do not reveal that the Veteran had a right ear loss disability during his active military service. There is no evidence of any complaints of or treatment for hearing loss during military service. The Veteran's June 1959 separation examination shows that the Veteran's ears were evaluated as clinically normal. The audiometric results revealed that the Veteran's pure tone thresholds for the right ear were 15 (0) dB at 500 Hz, 10 (0) dB at 1000 Hz, 20 (10) dB at 2000 Hz, 20 (10) dB at 3000 Hz and 15 (10) dB at 4000 Hz. Thus, the evidence shows that the Veteran's hearing in the right ear was within normal limits at the separation examination. See Hensley, 5 Vet. App. at 157 (determining that the threshold for normal hearing is from 0 to 20 decibels, and that threshold levels of above 20 decibels indicate at least some degree of hearing loss). The Board notes that the Veteran, as a lay person, is competent to note a decrease in his hearing during service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, he is not competent to provide evidence that he had a chronic hearing loss disability which met the requirements of 38 C.F.R. § 3.385. The Veteran has never asserted that he received treatment for hearing loss or that he was diagnosed with sensorineural hearing loss within the first year after service. Furthermore, the first medical evidence of hearing loss, which meets VA's definition of a disability, is a July 2006 VA treatment record, approximately 47 years after separation from service and the first evidence of a diagnosis of sensorineural hearing loss of the right ear was in the April 2009 VA examination, approximately 50 years after separation from military service. Thus, service connection for right ear hearing loss may not be awarded on a presumptive basis. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Based on the foregoing, the critical question in the present case turns upon whether the Veteran's current right ear sensorineural hearing loss disability is etiologically related to his active military service. This may be shown either through continuity of symptomatology since service as the Veteran as a current diagnosis of chronic disability listed under 38 C.F.R. § 3.309(a) or through competent evidence of a nexus between his current complaints and service. 38 C.F.R. § 3.303. As noted above, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran contends that his hearing loss started during military service. He is competent to report symptoms of decreased hearing since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, the Veteran is not competent to report that he had sensorineural hearing loss in service as that requires special medical knowledge. There is no diagnosis of right ear sensorineural hearing loss during service and the medical evidence of record shows that the Veteran had normal hearing at the separation examination which was after the alleged noise exposure. The Federal Circuit held in Walker that section 3.303(b) only applies to a chronic disease as listed under section 3.309(a) that was shown in service. Walker, 708 F.3d at 1336. Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to sensorineural hearing loss of the right ear. The Veteran contends that he injured his ears, causing decreased hearing, during military service due to loud noise exposure from airplanes while working as personnel specialist that required delivering mail and packages inside large airplane hangars. The Board observes that the service personnel records indicate that his military occupational specialty (MOS) during service was personnel specialist. In a case where a veteran is seeking service connection for any disability, due consideration must be given to the places, types, and circumstances of the veteran's service. 38 U.S.C.A. § 1154(a). As a personnel specialist with duties that included delivery of packages to airplane hangars it is likely that the Veteran was exposed to loud noise; thus, noise exposure is consistent with the conditions of his active military service. Accordingly, the Board finds that the Veteran's history of in-service acoustic trauma is credible. With respect to whether the Veteran's right ear hearing loss is related to active military service to include noise exposure from aircraft, the claims file contains a negative medical opinion. In this regard, the Veteran was provided with two VA examinations with respect to his right ear hearing loss in April 2009 and November 2012. After the examiner in April 2009 reviewed the record, obtained a lay history of the Veteran's hearing loss and conducted a physical examination of the Veteran's ears to include an audiogram, the examiner provided the opinion that it is not likely that the hearing loss in the right ear is a result of military noise exposure as the only documentation of hearing levels was just prior to release from active duty and it indicated hearing was within normal levels. The examiner then noted that the same examination indicated a mild high frequency hearing loss in the left ear and therefore, it is at least as likely as not that the hearing loss in the right ear is related to service. As the examiner gave conflicting opinions in the report, the Veteran was provided with another examination in November 2012. The examiner reviewed the claims file, obtained an oral history of hearing loss from the Veteran and documented the results of the examination. Thereafter, she provided the opinion that it is less likely than not that hearing loss in the right ear is caused by or a result of an event during military service. She explained that the Veteran's service treatment records show that the Veteran's hearing was within normal limits at the time of separation from service. She also noted that a study conducted by the Institute of Medicine that was published in 2005 (Noise and Military Service, September 2005) shows that in cases where entrance and separation examinations revealed normal hearing there was no scientific basis for concluding that hearing loss that developed afterwards is causally related military service. The Board concludes that this opinion is highly probative and persuasive as the examiner reviewed the Veteran's claims file including his service treatment records and provided a clear explanation for her opinion based on the evidence of record and a medical study. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board also finds it persuasive that the record does not contain any competent medical evidence or opinion that would indicate the Veteran's right ear hearing loss is related to the loud noise exposure in service. The Veteran contends that his right ear hearing loss was caused by military service. Lay persons can provide an account of observable symptoms, such as in this case the Veteran's observation that he has difficulty hearing. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, the lay assertions regarding whether the Veteran's current sensorineural hearing loss of the right ear is related to noise exposure in service has no probative value, because this type of opinion requires special medical knowledge. The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's right ear hearing loss and exposure to loud noise during military service. As the probative evidence of record does not establish a relationship between the Veteran's current right ear hearing loss and his period of active military service, the Board finds that the preponderance of the evidence weighs against the claim. Therefore, entitlement to service connection for right ear hearing loss is not warranted. ORDER Entitlement to service connection for right ear hearing loss is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs