Citation Nr: 1322293 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-27 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hearing loss in the right ear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran reported over 20 years of active service between August 1953 and August 1974. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Cleveland, Ohio, which granted entitlement to service connection for tinnitus but denied service connection for bilateral hearing loss. Jurisdiction over the appeal currently resides with the RO in Montgomery, Alabama. This case was remanded for additional development in September 2012. The case was subsequently remanded by the Board in March 2013 to determine whether an addendum opinion had been obtained in October 2012 and, if not, to obtain an addendum opinion on whether the Veteran's current hearing loss is causally related to service. An addendum opinion was obtained in April 2013; and a May 2013 rating decision granted service connection for hearing loss in the left ear, assigning a noncompensable rating effective June 7, 2007. Because service connection has been granted for hearing loss in the left ear, the current issue on appeal is as noted on the title page. As an addendum opinion was obtained and added to the claims files, there has been substantial compliance with the March 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). 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 The Veteran does not have hearing loss in the right ear that is causally related to service, nor did he have hearing loss to a compensable degree within one year of service. CONCLUSION OF LAW The criteria for the establishment of service connection for hearing loss in the right ear are not met as the disorder was not incurred in or aggravated by active duty; nor may sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2011). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in July 2007, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the July 2007 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No additional private evidence was subsequently added to the claims file after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA audiological evaluation with nexus opinion was obtained in November 2007, with an addendum obtained in April 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 VA examination report and addendum obtained in this case are adequate, as they are based on a reading of relevant medical records in the Veteran's claims file. The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinion on file. There is adequate medical evidence of record to make a determination on the service connection issue in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the service connection issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks service connection for hearing loss in the right ear as a result of service exposure to acoustic trauma. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In the case of sensorineural hearing loss, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As is noted above, the Board is required to follow applicable statutes and regulations in its decisions. Applicable regulations provide that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory 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). Before proceeding, the Board observes that prior to November 1, 1967, audiometric tests for hearing by a service department were reported by a standard set by the American Standards Association (ASA). Since November 1, 1967, the standard for audiometric testing for hearing has been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The ISO-ANSI standard is the current method for measuring hearing loss and used by VA to determine a hearing loss disability under 38 C.F.R. § 3.385. In order to facilitate data comparison, test results before November 1967 under the ASA standard should be converted to the ISO-ANSI standard. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records do not contain any complaints of hearing loss. These records reveal that the Veteran's hearing for whispered voice was 15/15 in March 1953, September 1954, and May 1969; it was 15/15 for whispered and spoken voice in August 1960, July 1961, and August 1962. An audiological evaluation in January 1967 revealed pure tone thresholds at the relevant frequencies, meaning from 500 to 4000 hertz, of 0 decibels, which are presumed to be ASA units since it is not specified and the examination is before November 1967. Converted to ISO units, the results in January 1967 would show pure tone thresholds at the relevant frequencies of 15 decibels at 500 hertz, 10 decibels at 1000, 2000, and 3000 hertz, and 5 decibels at 4000 hertz. Pure tone thresholds in December 1967 were 5 decibels at 500, 1000, 2000, and 4000 hertz in the right ear and at 1000, 2000, and 4000 hertz in the left ear; there was a pure tone threshold of 10 decibels at 500 hertz in the left ear. Pure tone thresholds in May 1971 were 0 decibels at 500, 1000, 2000, and 4000 hertz in the left ear and at 500, 1000, and 2000, hertz in the right ear; there was a pure tone threshold of 10 decibels at 4000 hertz in the right ear. Pure tone thresholds in the right ear in February 1974 were 20 decibels at 500 hertz, 10 decibels at 1000 hertz, and 5 decibels at 2000, 3000, and 4000 hertz; pure tone thresholds in the left ear in February 1974 were 10 decibels at 500, 1000, and 3000 hertz and 20 decibels at 2000 and 4000 hertz. A VA audiological evaluation, which included review of the claims files, was conducted in November 2007. The Veteran complained of bilateral hearing loss and tinnitus. Military noise exposure was significant for tanks, trucks, and helicopters. He reported use of hearing protection. He denied any other occupational or recreational noise exposure. Audiometric examination revealed pure tone thresholds from 500 to 4000 hertz in the right ear of 15 decibels at 500 hertz, 25 decibels at 1000 hertz, 30 decibels at 2000 hertz, 40 decibels at 3000 hertz, and 60 decibels at 4000 hertz. Pure tone thresholds from 500 to 4000 hertz in the left ear were 30 decibels at 500 hertz, 45 decibels at 1000 hertz, 35 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 60 decibels at 4000 hertz. Maryland CNC word list speech recognition scores were 92 percent in the right ear and 80 percent in the left ear. The examiner diagnosed normal hearing in the right ear from 250 to 1000 hertz, sloping to a mild to moderately severe sensorineural hearing loss; there was mild sloping to moderately severe sensorineural hearing loss in the left ear. The audiologist noted that hearing was normal in service, including on separation examination in 1974, and concluded that it was not likely that military noise exposure caused the Veteran's current hearing loss. According to an April 2013 addendum from the audiologist who evaluated the Veteran in November 2007, after review of the claims file, it was at least as likely as not that hearing loss in the left ear was caused by or the result of noise exposure in service but it was less likely than not that his hearing loss in the right ear was due to military noise exposure because, although hearing in both ears was considered within normal limits in service, the service treatment records show a significant threshold shift at the relevant frequencies in the left ear from 1967 to 1974 that was not shown in the right ear. The audiologist also noted that noise-induced hearing loss due to military exposure would not progress past his separation date unless the Veteran was in other types of noise outside of active duty military service, as noise-induced hearing loss is not late onset and will occur during time of exposure to noise. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The evidence on file does not support a grant of service connection for hearing loss in the right ear. Audiological evaluations in service were all within the VA definition of normal limits, with bilateral pure tone threshold from 500 to 4000 hertz of 20 decibels or fewer. The initial medical evidence of hearing loss in the right ear was not until November 2007, which is over 33 years after service discharge. Additionally, the only nexus opinion on file, which is based on a review of the claims file and examination of the Veteran, is against the claim. The audiologist concluded in April 2013 that there was a difference in the hearing loss in service between the left and right ears, identified as a significant threshold shift in the left ear, which warranted treating them differently. Because right ear hearing loss was not diagnosed until 2007, there is no competent evidence that it manifested to a compensable degree within a year of service. While the Veteran is competent to state he has trouble hearing, he is not competent to state what his specific level of hearing loss is. Audiometric testing is required for that determination. Therefore, service connection for right ear hearing loss cannot be presumed. 38 C.F.R. §§ 3.307, 3.309 (2012). Due consideration has been given to the Veteran's statements in support of his claim. Although the Veteran is competent to report his hearing symptoms, he is not competent to opine that he currently has hearing loss in the right ear due to service. The Board does not dispute that the Veteran was exposed to acoustic trauma in service; however, the evidence as a whole, as discussed above, does not show hearing loss in the right ear due to service. Consequently, service connection for hearing loss in the right ear is denied. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's service connection claims, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for hearing loss in the right ear is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs