Citation Nr: 1322306	
Decision Date: 07/11/13    Archive Date: 07/18/13

DOCKET NO.  12-35 580	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel







INTRODUCTION

The Veteran had active service from September 1953 to September 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Diego, California, that determined that new and material evidence had not been received to reopen the previously denied claim of service connection for hearing loss.

This matter was previously before the Board in April 2013 at which time it was reopened and remanded for additional development.  It is now returned to the Board.  

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

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

Hearing loss did not have its onset until years after military service; it did not result from disease or injury in service.


CONCLUSION OF LAW

The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).
 In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

By letters dated in November 2009, March 2011, and April 2013, the Veteran was notified of the evidence not of record that was necessary to substantiate his claim.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.  He was also provided with the requisite notice with respect to the Dingess requirements.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied.

Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The Veteran's relevant service, VA, and private medical treatment records have been obtained.  There is no indication of any additional, relevant records that the RO failed to obtain.  The Veteran has been medically evaluated.  In short, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. 

Service connection

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain organic diseases of the nervous system may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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).

In Hensley  v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, even though disabling hearing loss may not have been demonstrated at separation, a Veteran may still establish service connection for a current hearing loss disability by showing he now satisfies the threshold minimum requirements of 38 C.F.R. § 3.385 and by submitting evidence that his current disability is related to his active service.   See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

The threshold for normal hearing is from zero to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  See Hensley, at 157.  The Court further opined that 38 C.F.R. § 3.385 operates only to establish when hearing loss can be service connected.  Regardless of when the criteria of 38 C.F.R. § 3.385  are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.  Id., at 159.

The Veteran contends that his current bilateral hearing loss is due to in-service noise exposure during close firing of heavy artillery pieces, machine guns, and small arms.  His statements suggest that he believes hearing loss began in 1955.

The Veteran's Report Of Separation From The Armed Forces Of The United States (DD Form 214) indicates completion of a basic field artillery training course in 1954, so exposure to heavy artillery fire is likely.  Exposure to machine guns and small arms fire was also likely.

The Veteran's service treatment records are silent as to any complaints, treatments, or diagnoses of hearing loss.  During his period of active service, he underwent six whispered voice tests - in 1952, 1953, 1955, 1956, 1958, and 1959.  On all tests, he received clinically normal scores of 15 out of 15.

Following service, a private audiogram from the Oceanside Hearing Aid Center dated in November 2002 shows that the Veteran was shown to have pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
20
50
85
LEFT
5
20
15
40
55

A letter from a private audiologist at the Hearing Center, Inc., dated in February 2006, shows that the Veteran had reported a history of noise exposure from gun and cannon fire during his period of active service.  Hearing tests were said to have revealed high frequency sensorineural hearing loss.  The examiner could not state for certain that this was the cause of his hearing loss, but added that noise exposure and age may be contributing factors.

A VA examination report dated in March 2006 shows that the Veteran was diagnosed with bilateral sensorineural hearing loss.  The examiner opined that the Veteran's current bilateral hearing loss was more likely unrelated to active service.  In reaching this conclusion, the examiner relied on the in-service whispered or spoken voice test results.  The examiner also speculated that the 2002 examination was the first time the Veteran had been diagnosed with hearing loss, based on the absence of earlier evidence in the record.  It was noted that it had been more than 50 years since the end of the Veteran's active service, the Veteran was 75 years old, and he had never used a hearing aid.  

A letter from R. Amir, M.D., dated in February 2007, shows that the Veteran reported a history of in-service noise exposure from 155 mm and 105 mm Howitzers.  He also reported the absence of exposure to high level noise in civilian life.  In light of the foregoing, Dr. Amir concluded that it was as likely as not that the Veteran's hearing loss was related to active service.

In November 2007, the Veteran submitted additional evidence in support of his claim, including an executive summary of a study analyzing noise in the military and its potential effects on hearing loss, a public law that included commission of a study to consider hearing loss of those in service, a chart of sound levels produced by various military weapons, and samples of documents granting benefits for hearing loss in service or opining as to military service causation for hearing loss.

In July 2009, the Veteran submitted a copy of a relevant portion of the Occupational Safety and Health Act of 1970 (OSHA) suggesting that exposure to impulsive or impact noise should not exceed 140 decibels peak sound pressure level, and the levels of hearing exposure that would require the use of personal protective equipment.  The Veteran also submitted a copy of an undated Base Noise Advisory from Camp Pendleton informing those on base of an upcoming four-day period of shelling.

In a letter dated in December 2010, the Veteran referenced a Marine Corp Order Numbered 6260 which was said to require the use of hearing protection devices, emphasizing that a single impulse noise of 140 decibels was likely to cause hearing loss, and that the failure to comply would result in disciplinary action.  The Order further suggests that high intensity impulse noise and loud continuous noise may result in hearing loss, and that because of its incremental and cumulative nature, the hearing loss may not be noticed until serious impairment has already taken place.

A VA examination report dated in May 2013 shows that the examiner indicated that the Veteran's claims file had been reviewed in conjunction with the examination of the Veteran.  Audiological evaluation revealed pure tone thresholds, in decibels, as follows:



HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
35
55
75
LEFT
10
25
50
60
65

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear.  The diagnosis was right and left ear sensorineural hearing loss.  The examiner opined that the Veteran's hearing loss was not as likely as not caused by or a result of an event in active service.  

In the rationale, the examiner explained that the whispered voice tests in service had all been within normal limits, and that while in service, the Veteran had indicated that he had never had ear, nose, or throat trouble.  There had been no indication in the service treatment records that the Veteran had reported hearing loss or difficulty with hearing.  Following service, the November 2002 records from Oceanside Hearing Aid Center were said to have indicated bilateral high frequency hearing loss, however, this was long (43 years) after active duty.  The March 2006 VA examination report was referenced, noting that the examiner concluded that the Veteran's current hearing loss was likely unrelated to active service based on grossly normal hearing through 1958 and no documentation of hearing loss until 2002.  

The VA examiner also indicated review of the February 2006 letter from the Hearing Center, Inc.; the February 2007 letter from Dr. Amir; the Marine Corp Order Numbered 6260 suggesting that high intensity impulse noise and loud continuous noise could result in hearing loss, and that because of its incremental and cumulative nature, hearing loss may not be noticed until serious impairment had already taken place; and a 2006 Institute of Medicine report that suggested that there was no scientific basis to conclude that permanent hearing loss was directly attributable to noise exposures that would develop long after such noise exposure.  

The VA examiner concluded that based on the foregoing, the Veteran's current bilateral sensorineural hearing loss was less likely as not caused by or a result of military noise exposure.  It was reiterated that the opinion was based on the fact that there was no evidence of the onset of hearing loss in service; no noted complaint or diagnosis of hearing loss in service; no evidence of the onset of hearing loss significant for VA purposes within a reasonable time following service; the Marine Corp Order Numbered 6260 suggesting that noise exposure "may" cause temporary or permanent hearing loss, but depended on the exposure, its intensity, and susceptibility of the individual; the prior opinions of the VA examiners; and the 2006 report from the Institute of Medicine.

The medical evidence of record confirms that the Veteran currently manifests bilateral hearing loss as defined by 38 C.F.R. § 3.385.  As such, the first element required for service connection for the asserted disability has been met.

With regard to the evidence of in-service occurrence or aggravation of a disease or injury, the Veteran has reported experiencing acoustic trauma in conjunction with his service in an artillery unit.  He is competent to describe noise exposure sustained during service, and his statements to this effect are considered credible.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board notes that the separation examination report showed hearing within normal limits.  When audiometric test results at separation do not meet the regulatory requirements for establishing a disability at that time, the Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, 5 Vet. App. at 160.

Even having established that the Veteran sustained acoustic trauma in service, acoustic trauma and noise exposure sustained in service are not, in and of themselves, disabilities subject to service connection under VA regulations.  There must still be medical evidence, or in certain circumstances, lay evidence, of a nexus between the in-service injury or disease and the current disability.

In this regard, the Board finds probative the May 2013 VA medical opinion which concluded that it was less likely that the Veteran's hearing loss was the result of his period of active service.  This opinion is considered probative as it was a definitive explanation of the case, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale.  Accordingly, the opinion is found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.   See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The Veteran has not provided any competent medical evidence to rebut this opinion against the claim or otherwise diminish its probative weight.  See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

The Board has considered the February 2006 opinion from the Hearing Center, Inc., however, the examiner could not state for certain that the Veteran's hearing loss was caused by acoustic trauma in service.  A finding of service connection may not be based on a resort to speculation or remote possibility.  38 C.F.R. § 3.102 (2012); Bloom v. West, 12 Vet. App. 185 (1999) (treating physician's opinion that Veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative); Tirpak v. Derwinski, 2 Vet. App. 609   (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of a claimed disorder or any such relationship).  Therefore, the Board gives less evidentiary weight to this opinion. 

The Board has also considered the February 2007 letter from Dr. Amir in which it was concluded that it was as likely as not that his hearing loss was related to active service.  However, the reasons for Dr. Amir's conclusion were not specifically set forth.  In this regard, the most probative value of a medical opinion comes from its reasoning.  A medical opinion containing only data and conclusions is not afforded significant probative weight.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  As such, the Board concludes that this opinion is of limited probative value.

It is further acknowledged that the Veteran has provided various general articles and studies regarding acoustic trauma and hearing loss.  The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998).  Here, the Board does not assign this evidence significant weight as it does not establish a correlation between the Veteran's current hearing loss disability and his period of active service with any degree of medical certainty.  Further, this evidence does not address the facts that are specific to this particular case.  As such, these articles are of limited probative value.

The Board recognizes the Veteran's contentions that he has had continuous bilateral hearing loss since active service.  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.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr, 21 Vet. App. at 303.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 492 F.3d at 1377.

To the extent that the Veteran is able to observe continuity of bilateral hearing loss, his opinion is outweighed by the competent medical evidence of record.  Simply stated, the Veteran's service treatment records (containing no competent medical evidence of bilateral hearing loss at separation) and post-service treatment records (showing no complaints, symptoms, findings or diagnoses associated with bilateral hearing loss until November 2002, and no probative medical evidence linking the reported bilateral hearing loss to the Veteran's service) outweigh the Veteran's contentions. 

Overall, the evidence is not in relative equipoise, as there is evidence of normal hearing acuity at separation from service, and a near 43-year gap between the Veteran's discharge from service and indications of bilateral hearing loss.  The most probative evidence of record addressing the etiology and onset of the Veteran's hearing loss weighs against the claim.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See generally Gilbert, 1 Vet. App. at 49; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The benefit sought on appeal is, therefore, denied.


ORDER

Service connection for hearing loss is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs