Citation Nr: 1322264 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-17 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from May 1968 to May 1970. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating action of the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied the claim for service connection for bilateral hearing loss. In March 2012 the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2012 the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The development has been completed, and the case is before the Board for final review. FINDING OF FACT The Veteran is not shown to have a current bilateral hearing loss disability for VA compensation purposes. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In April 2006 a VCAA letter was issued to the Veteran with regard to his claim of service connection. The letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing has the duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge outlined the issue on appeal and suggested that with regard to his hearing loss claim, the Veteran needed an event in service, such as a lot of noise as a radio repairman; a current hearing loss disability for VA purposes; and a link between a current hearing loss disability and acoustic trauma in service. Likewise, such claim was remanded to obtain additional medical evidence, including a VA medical nexus opinion. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of the VCAA, to include substantial compliance with the prior remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records; post-service VA outpatient treatment records, including the complete report of a June 2011 VA audiological assessment; records from the Social Security Administration; and lay statements and testimony of the Veteran. There is no indication of relevant, outstanding records that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). In October 2006 and May 2013, the Veteran was afforded VA audiological examinations. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the hearing loss issue in appellate status. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as organic diseases of the nervous system, are 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. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 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. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Service treatment records were silent for complaints or findings related to hearing loss or tinnitus. During service, the Veteran underwent audiometric examinations at pre-induction and separation. In a January 1968 pre-induction report of medical history the Veteran reported a history of running ears and hearing loss. He identified his usual occupation as farm labor. A physician's summary elaborated that both ears run and the Veteran had some hearing loss. In an April 1970 separation report of medical history, the Veteran reported a history of running ears, but denied a history of ear trouble; he listed his usual occupation as construction. A physician's summary elaborated that the Veteran was troubled with cerumen deposits in his ear canals, but was healthy while in service. The results of audiometric testing are recorded as follows: HERTZ Date Ear 500 1000 2000 3000 4000 January 1968 (Induction) RIGHT 10 15 15 N/A 15 LEFT 5 0 5 N/A 20 April 1970 (Separation) RIGHT -10 -10 -10 N/A -10 LEFT -10 -10 -10 N/A -10 Service records list his military occupational specialty as radio repairman. A November 2004 letter to the Veteran from the Laborers National Pension Fund notified him that he had been approved for an early retirement pension, effective November 2004. The Veteran's claim for service connection for bilateral hearing loss and tinnitus was received in February 2006. Treatment records from the Houston VA Medical Center (VAMC) dated from January 1998 to February 2006 were silent for complaints or findings related to hearing or ear problems. During a December 2001 primary care visit, he identified his occupation as construction and denied having tinnitus during a review of systems. A September 2006 Exam Request Report indicates that a fee-basis audiological examination request was made, that the claims file would not be sent to the audiologist, but opinions were requested regarding the etiology of the claimed hearing loss and tinnitus disabilities. The Veteran was afforded a fee-basis audiological examination in October 2006. He stated that his claimed hearing loss and tinnitus had existed for 38 years or since 1968 following exposure without hearing protection to arms fire, artillery, and explosives while in service. He described his duties as a radio operator. After service he worked in construction for 10 years without hearing protection followed by 23 years of construction work with hearing protection. According to the examiner, he did not report any exposure to loud noise outside of military service. On audiometric testing, pure tone air conduction thresholds, in decibels, were as follows: HERTZ Ear 500 1000 2000 3000 4000 RIGHT 25 15 25 20 25 LEFT 25 20 20 20 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The diagnosis was mild bilateral sensorineural hearing loss above 4000 Hz. The audiologist explained that excessive noise exposure is a known causative agent for hearing loss and/or tinnitus and noted that the Veteran was exposed to excessive noise while in the military. Therefore, she opined that it is as least as likely as not that the Veteran's reported hearing loss and tinnitus were due to military noise exposure. In a November 2006 rating decision, the RO resolved doubt in the Veteran's favor and granted service connection for tinnitus. VA treatment records dated from April 2004 to February 2011 were silent for complaints or findings related to perceived hearing loss or other ear problems. In May 2005, the Veteran reported that he had stopped work due to gouty arthritis in his knees. During a May 2008 VA hemic disorders examination, the Veteran reported that he had worked in construction and retired in 2004. The Veteran presented for a VA audiology assessment in June 2011 and completed an audiology history form. He indicated that he was not in combat and had worked in construction his entire life before entering and since leaving military service. He indicated that he first noticed hearing loss and ringing in his ears eight years ago [in 2003] and that the hearing problem came on slowly. He believed that rifle use during basic training caused the noises [tinnitus]. In a work history and loud noise exposures checklist, he indicated that he was exposed to firearms, a firing range, construction work, and power tools. On audiometric testing, pure tone thresholds, in decibels, were reported in graphic format, but appear to read as follows: HERTZ Ear 500 1000 2000 3000 4000 RIGHT 25 20 25 35 30 LEFT 25 20 25 25 25 The assessment was normal to mild bilateral sensorineural loss. Records from the Social Security Administration (SSA) were received in September 2011 and reflect that disability benefits were awarded based on the primary diagnosis of essential hypertension and secondary diagnosis of gouty arthritis. In March 2012 the Veteran testified that he sometimes cannot hear. When asked whether he noticed a problem hearing while he was in the service, the Veteran replied, "No Sir, no Sir, I did not. No, that, no I didn't." However, he stated that in 1968, "the radios were not like today. They were real noise makers and everything was in an enclosed trailer not bigger than four feet by six feet and we had all the radios there." The Veteran was afforded another VA audiological examination in May 2013. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ Ear 500 1000 2000 3000 4000 RIGHT 20 15 25 20 20 LEFT 15 20 20 25 25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 98 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss in the frequency range of 6000 Hz or higher. Following a review of the claims file and audiological examination, the audiologist elaborated that the Veteran's hearing was normal at enlistment and separation from 500 to 4000 Hz with no significant shifts noted. The audiologist also detailed that the Veteran had reported no specific onset event, and the Veteran described his duties in radio as "switch board" and relaying messages with no combat experience. During the examination, the Veteran also reported that he had tinnitus that started about two years ago. The examiner noted that he had written that it started about nine years ago [in 2004], but he repeated that it had only been a few years. The audiologist opined that it was less likely than not that the reported tinnitus was cause by or a result of military noise exposure. The audiologist reasoned that the tinnitus reported was more consistent with blood pressure sounds and not tinnitus caused by noise. Also, she reiterated that there was no significant shift noted from enlistment to separation, no specific onset during military service, and the Veteran served as a radio operator with switch board duties. Having carefully considered the medical and lay evidence of record, the Board finds that service connection for bilateral sensorineural hearing loss is not warranted. Initially, the Board acknowledges that the Veteran is competent to describe symptoms of perceived hearing loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing sensorineural hearing loss and determining the etiology of such falls outside the realm of common knowledge of a lay person, as such requires audiometric examination by trained medical personnel. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board accords significantly greater probative value to the medical evidence of record than to the Veteran's lay assertions on these points. In this case, the Board finds that service connection for bilateral hearing loss is not warranted because there is no evidence of a current bilateral hearing loss disability. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In other words, in the absence of proof of present disability, in this case impaired hearing per 38 C.F.R. § 3.385, there can be no valid claim. Here, there is no probative medical evidence of a hearing loss disability during service and following separation from service, as defined by the applicable regulation. The Board acknowledges that the October 2006 fee-basis examiner diagnosed mild bilateral sensorineural hearing loss and opined that such hearing loss was related to the Veteran's reported excessive noise exposure while in the military. Nevertheless, the Board emphasizes that none of the audiometric testing data of record, including the testing performed by the October 2006 fee-basis audiologist, reflects hearing loss as defined by 38 C.F.R. § 3.385. Moreover, the Board notes that the October 2006 fee-basis examiner was not provided access to the Veteran's claims file for review. Accordingly, the audiologist's medical opinions regarding the etiology of the claimed hearing loss and tinnitus disabilities appear to be based entirely on the Veteran's subjective report of hearing loss and tinnitus since 1968, which is contradicted by his prior and subsequent statements. For example, the Veteran's October 2006 report of a 1968 onset of perceived hearing loss and tinnitus is contradicted by his prior statements in which he denied a history of ear trouble on separation examination in April 1970 and denied having tinnitus in December 2001. His October 2006 report of a 1968 onset of hearing loss and tinnitus is also contradicted by subsequent statements made in June 2011 that he first noticed a slow onset of hearing loss and ringing in his ears around 2003 and made in his March 2012 testimony given under oath that he did not notice a hearing loss problem during service. Therefore, to the extent that the October 2006 fee-basis examiner opined that the claimed hearing loss disability, which is not shown by medical evidence of record, was related to military noise exposure, the Board does not find the opinion to be persuasive. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs