Citation Nr: 1322271	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  12-24 952	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Wishard, Counsel

INTRODUCTION

The Veteran had active military service from June 1951 to July 1956.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas.  

This matter was previously before the Board in January 2013 and was remanded for further development.  It has now returned to the Board for further appellate consideration. As discussed in further detail below, the Board finds that the Appeals Management Center has substantially complied with the Board's remand.

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).


FINDINGS OF FACT

1.  There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran has bilateral hearing loss disability causally related to active service. 

2.  There is no clinical evidence of record of bilateral hearing loss disability within 50 years after separation from service. 

3.  The Veteran is less than credible with regard to any statement as to hearing loss disability since service.


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in, or aggravated by, active service, and may not be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1154, (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice was provided to the Veteran in August 2010.

VA has a duty to assist the Veteran in the development of the claim.  The claims file includes service treatment records (STRs), VA and private medical records and correspondence, written articles, and the statements of the Veteran in support of his claim.  The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain 

A VA examination was obtained in 2011 with addendums in 2011 and 2013.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the examination/opinions are adequate as they are predicated on consideration of the Veteran's disability, his service, and his lack of audiometric examination upon separation from service.  The examiner stated that an opinion could not be provided without resort to mere speculation because audiometric testing was not performed upon separation.  In order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.  Jones v. Shinseki, 23 Vet. App. 382 (2010).  Here the clinician's opinion was based on the lack of audiometric testing upon separation and included a discussion as to why whispered voice testing is inadequate.  No audiometic testing was performed upon separation, and it is chronologically impossible to provide the Veteran with a current hearing test to determine his hearing acuity in service, or upon separation in 1956.  The Board also notes that the clinician did not have a copy of the claims file; however, the claims file would not have assisted her because it did not contain audiometric results upon separation.  Thus, the Veteran has been provided with an adequate examination and opinion.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims.  Essentially, all available evidence that could substantiate the claim has been obtained.

Legal Criteria

Service Connection

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).  

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a '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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). 

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). 

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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.  

The Veteran avers that he has a bilateral hearing loss disability as a result of active service.  An essential element of a claim for service connection is evidence of a current disability.  A June 2011 VA examination report is of record.  The report revealed that pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
45
75
60
65
65
LEFT
45
50
60
65
65

The Veteran's speech recognition score was 88 percent for the right ear and 88 percent for the left ear.  Based on the foregoing, the Veteran has a current bilateral hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  

A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease.  The Veteran's service personnel records reflect that he served aboard the USS Sarsfield.  They also reflect that he had training as a steward.  The Veteran's final DD 214 reflects that his military occupational specialty was as a room steward (water transportation).  The Board notes that a steward in the Navy would have involved work in the mess, or food services.  (The STRs also reflect food handling.)

In a statement received by VA in September 2012 and in a statement dated in February 2013, the Veteran asserted that while in service, he was surrounded by rapid fire from a five inch projector gun going approximately every ten minutes.  He has stated that he also worked in a shipyard with excessive noise exposure, and that he did not have hearing protection.  He alleges in-service noise exposure to gunfire, generators, and plane engine noise.  He alleges that in addition to service on the USS Sarsfield, he "worked with the USA Lady Air Craft Carrier," and the USS Nautilus.  He further stated that he has suffered from hearing loss for many years.  The Board notes that the USS Sarsfield is a destroyer, and the USS Nautilus is a submarine; thus, neither would be expected to have significant plane engine noise.  The Board also finds that the Veteran's reference to the USA Lady is most likely a reference to the USS Leyte.  (There is no evidence of a US Navy vessel named USA Lady.)  The Veteran's service personnel records do not reflect service on the USS Nautilus or the USS Leyte.  They reflect service in San Diego for initial instruction upon enlistment and subsequent service in Texas (1951 - 1952) and Kansas (1952 - 1953).  They reflect that he was transferred to the USS Sarsfield in December 1953, where he served through March 1956.  His first and only Navy vessel listed in the service personnel records is the USS Sarsfield.  (See MARKS and Administrative Remarks.)  

The Veteran submitted a written article from "Wikipedia.org" on the USS Sarsfield.  The article reflects that the USS Sarsfield underwent overhaul at a Naval Shipyard in 1957, was a plane guard to the USS Leyte in 1958, and was overhauled at a Naval Shipyard in 1958.  The Veteran separated from service in 1956; thus, he would not have been involved in such activities.  The Veteran also submitted a written article from "Wikipedia.org" on the USS Nautilus.  The article notes that the USS Nautilus as first put to sea in January 1955.  The Veteran's service personnel records reflect that he was serving on the USS Sarsfield at that time.  

A report of a December 2011 VA examination for breathing issues reflects that the Veteran reported that he worked as a steward onboard naval ships between 1951 and 1955, and that he worked for a period of time in a naval shipyard which refurbished ships; although, he was not working directly in the manufacturing or refurbishing process.  The Board finds that the service personnel records, contemporaneous to the Veteran's service, are more probative than his statements made decades later with regard to acoustic trauma.  The Board acknowledges that some acoustic trauma would be consistent with service in the U.S. Navy; however, the Veteran's main occupation was as a steward in service; thus, his service would not entail extensive work with, or exposure to, large generators, planes, guns, or other weapons.  

The Veteran stated that he began to experience tinnitus in his ears and that they began to hurt while in service.  He further stated that he could not leave his battle station at that time, but did later report it to his commanding officer, but could not go to sick bay due to training.  The Board notes that the STRs reflect that the Veteran sought treatment on several occasions while in service for a variety of complaints.  The records reflect that he sought treatment for pain in the left groin, left flank, and liver (September 1951), urethral discharge (August 1952), pain in the groin (September 1952), corns on both small toes (November 1952), a sore throat (January 1953), a sore throat (February 1953), his left eye (April 1953), a cold (April 1953), Sartorius strain (August 1953), seasickness (October 1954), daily complaints of seasickness (November 1955), urethral discharge (May 1956), and generalized itching of body, urticaria, swelling of hands (June 1956).  Thus, the Board finds that if the Veteran had noted decreased hearing in service, it would have been reasonable for him to have complained of it, and it to have been noted in the STRs, as he sought treatment on numerous other occasions.  The STRs are negative for complaints of hearing problems.  The July 1956 clinical evaluation for discharge purposes reflects that the Veteran was found to be physically qualified for discharge.
 
The STRs include a July 1956 clinical evaluation report for separation purposes which reflects that the Veteran's ears were noted to be normal.  No audiometric results are noted on the report.  The examination report reflects that his hearing on whispered voice testing was 15/15 bilaterally.  

The Veteran separated from service in 1956.  The earliest post service clinical evidence is from 1983, approximately 27 years after separation from service; however, it is against a finding of hearing loss disability.  Correspondence dated in November 1983 from the office of Dr. B.D., but signed by Dr. J.D. reflects that the Veteran reported that he served aboard the USS Sarsfield for 18 months.  The correspondence is in regard to a breathing disability; however, it provides evidence pertinent to the issue on appeal.  The correspondence noted that the Veteran was a professional singer and had been occupied as a night club singer since 1963, approximately 20 years.  His work history was noted to include prior employment as a janitor for two years, and as a truck driver and machine operator for a furniture manufacturing company.  The correspondence reflects that the Veteran denied any problems with his ears. 

A January 2006 VA clinical record reflects that the Veteran was a retired recording artist.  A review of his systems reflected that the Veteran denied decreased hearing.  The only finding with regard to the ears was left ear cerumen.  In addition, the past medical history notation did not list hearing loss disability.

A February 2007 VA clinical record reflects that the Veteran complained of decreased hearing in the left ear for one month.

Another February 2007 VA clinical record reflects that the Veteran complained of left ear hearing impairment for "two months" and had no other complaints.

The Board finds that any statement by the Veteran that he has hearing loss since service is less than credible when considered with the record as a whole, to include his normal whispered voice hearing on separation, his 1983 denial of any ear problems, his January 2006 VA denial of decreased hearing, and his 2007 statements of hearing impairment for one and two months in duration.  

The Board also finds that there is no competent, credible evidence of a nexus between the current disability and service.  

A November 2011 addendum to a June 2011 VA examination report reflects that "an opinion regarding service connection for hearing loss would be based on speculation due to lack of exit exam at time of discharge."  An April 2013 addendum also reflects that "without accurate audiometric data of veteran's hearing acuity during and upon separation from military service, an opinion regarding veteran's hearing loss and nexus to military noise exposure cannot be rendered without resorting to mere speculation."  The examiner commented that the only evidence of the Veteran's hearing sensitivity during service are whispered voice tests, all suggesting hearing to be within normal limits.  However, whispered voice tests were noted to lack frequency and intensity specific information and are insensitive to high frequency hearing loss, the type of hearing loss most commonly associated with noise exposure.  The examiner concluded that whispered voice tests are not reliable evidence of normal hearing or hearing impairment.  

Correspondence dated in August 2009 from Dr. J.G. states that the Veteran had presented with complaints of some symptoms of hearing loss and that audiometry revealed a fairly marked sensorineural hearing loss.  No etiology was provided.   

Correspondence dated in January 2013 from Dr. W.B., Jr. reflects that the Veteran presented to his office "needing documentation for hearing loss that was Navy service related."  The statement reflects that the Veteran was prescribed and fitted for hearing aids, but was not able to get them due to the high cost.  It notes "[the Veteran] finally got the hearing aids through the VA Hospital of Dallas as this was determined to be service related."  The correspondence does not provide a competent opinion as to the Veteran's hearing loss etiology, but merely states that the doctor believes that the Veteran was provided hearing aids by VA because, the doctor believed, that VA had determined that his hearing loss was service-connected.  Dr. W.B., Jr. provided no etiology findings himself.  (The Board also notes that the Veteran has not been granted service connection for bilateral hearing loss disability, and any statement as to such is incorrect.)

The earliest clinical evidence of hearing loss is in 2007, more than 50 years after the Veteran separated from active service.  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

In the present claim, there is no clinical opinion, or credible continuity of symptomatology, which supports a causal relationship between a hearing loss disability and active service.  The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., hearing difficulty).  To this extent, the Board finds that the Veteran is competent to report that he has current hearing loss.  The Board notes that there is no clinical evidence that he complained of, or sought treatment for, hearing loss for more than five decades after separation from service.  The Veteran stated in 2012 that he had "suffered with this hearing loss for many years;" however, he has not stated that he has had it since service, and the Board finds, based on the evidence noted above, that any such statement is less than credible.  While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson,  451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.)  In this regard, the Board notes that the Veteran had extensive experience as a singer and/or recording artist.  Thus, it would be reasonable to assume that his hearing acuity would be important to his employment, and that if he had experienced difficulty with hearing acuity, he would have sought treatment for it; however, there is no evidence of such complaints or treatment.  To the contrary, in 1983, the Veteran denied problems with his ears, and, in 2006, denied decreased hearing.  His first clinical complaints of decreased hearing were in 2007.  The Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation in the present case (i.e. sensorineural hearing loss first noted decades after separation from service with post-service exposure to acoustic trauma as a truck driver, machine operator, and as a singer, and with advanced age.)  

When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  While the regulations do not necessarily preclude service connection when hearing loss first meets the requirements after service, the regulations also do not hold that service connection is warranted, or mandatory, for hearing loss disability in the absence of a competent credible clinical nexus opinion or credible continuity of symptomatology from service.  In the present claim, there is no clinical opinion which supports a causal relationship between the Veteran's current hearing loss disability and active service, and no credible evidence of continuity of symptoms.  Thus, service connection is not warranted.

The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
 

ORDER

Entitlement to service connection or bilateral hearing loss disability is denied.




____________________________________________
M. E. LARKIN 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs