Citation Nr: 1322580 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-42 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In March 2009, the Veteran submitted a statement in which he stated he had rheumatic fever during active service. The issue of entitlement to service connection for residuals of rheumatic fever has been raised by the record (it appears), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action (if needed). FINDING OF FACT The Veteran experienced acoustic trauma in service, but did not sustain a disease or injury (other than acoustic trauma) of the bilateral ears in service; symptoms of bilateral hearing loss were not chronic in service or continuous since service separation; symptoms of bilateral hearing loss did not manifest to a compensable degree within one year of separation; and the Veteran's bilateral hearing loss is not related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, such as hearing loss, noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as organic diseases of the nervous system (e.g., sensorineural hearing loss), to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that 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 v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (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. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (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, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current bilateral hearing loss is related to acoustic trauma during active service. Specifically, he avers that he was exposed to the noise of various weapons, including 155 millimeter howitzers, as a radio operator in an artillery battery, and that he was not provided with any hearing protection. 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board finds that the evidence demonstrates that the Veteran was likely exposed to acoustic trauma in service. His DD Form 214 shows that his Military Occupational Specialty was radio operator, and his service personnel records show that he served in Vietnam from October 1967 to October 1968 and received a Purple Heart. Thus, the Board finds his contentions regarding military noise exposure to be credible. Next, after a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that, other than acoustic trauma, the Veteran did not sustain an injury or disease of the ears during active service, and that symptoms of hearing loss were not chronic during active service. In short, service treatment records do not demonstrate hearing loss complaints, findings, diagnosis, or treatment, or show any evidence of hearing loss (thresholds above 20 decibels). See Hensley, 5 Vet. App. at 157. At the September 1966 enlistment examination, an audiogram revealed puretone thresholds of 10, 5, 5, 5, and 0 decibels in the right ear, and 10, 5, 5, 10, and 10 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively (Note: Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.) The Veteran also checked "no" next to "hearing loss" on a November 1966 Report of Medical History. It does not appear that an audiogram or whispered voice test was conducted at the October 1968 separation examination. However, the Veteran again checked "no" next to "hearing loss" on the Report of Medical History, and clinical evaluation of the ears was marked as "normal." The Veteran's failure to report any hearing loss at the time of separation provides highly probative evidence against his own claim. The Board also finds that the weight of the evidence demonstrates that hearing loss did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no hearing loss symptoms during the one year period after service, and no diagnosis or findings of hearing loss of any severity during the one year post-service presumptive period. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). As noted above, the Veteran had active service from November 1966 to October 1968, many decades ago. The evidence shows the first documented complaint and assessment of hearing loss 24 years after service separation in 1992, as discussed below. For these reasons, the Board finds that hearing loss, first diagnosed in 1992, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for hearing loss are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. Next, the Board finds that the weight of the evidence demonstrates that symptoms of hearing loss have not been continuous since service separation. At the October 1968 service separation examination, as discussed above, the Veteran did not report any symptoms of hearing loss. Post-service medical records do not identify a diagnosis of hearing loss until 1992. A February 2007 progress note from Dr. D., a private physician, indicates that the Veteran began working for Carrier Corporation in 1992. He stated that he had some hearing tests prior to 1992, but that he was never told he had any significant hearing loss. Then, in 1992, the Veteran stated that a pre-employment hearing test showed mild hearing loss, but nothing that was of significance. The first time the Veteran became aware of any significant hearing loss was when he was told while employed for Carrier that he had a threshold shift in his hearing. The Veteran's statement that hearing tests prior to 1992 did not show any hearing loss is highly probative evidence against his claim, disconnecting the loud noise in service to his current hearing problems. Importantly, the Board notes that the Veteran does have a current hearing loss disability as defined by VA regulations. An audiogram conducted at the November 2010 VA examination revealed puretone thresholds of 15, 25, 30, 70, and 80 decibels in the right ear, and 15, 20, 20, 50, and 70 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively. Thus, based on the November 2010 audiogram results, the Board finds that the Veteran has a current bilateral hearing loss "disability" under the criteria of 38 C.F.R. § 3.385. The Veteran has not contended that his bilateral hearing loss began during active service. However, to the extent that his contentions made in the context of the current claim can be interpreted as an assertion that hearing loss began in service and that his hearing loss has continued while in service and following service, the Board finds that, while the Veteran is competent to report the onset of his hearing loss, his recent report of continuous symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's statements as to chronic hearing loss symptoms in service and continuous hearing loss symptoms after service are not accurate because they are outweighed by other evidence of record that includes the absence of in-service hearing loss complaints or symptoms, the Veteran's denial of any hearing loss at the October 1968 service separation examination, the Veteran's own statement that hearing loss was first detected in 1992, and the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of hearing loss for 24 years after service. In weighing the Veteran's statements of continuity of symptomatology made in conjunction with the current claim for VA compensation against the lack of continuity of symptomatology in the record from 1982 to 1998, the Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for 16 years is also one additional factor, along with other lay and medical evidence stated above, that the Board has considered in finding that the Veteran's recent statements of continuity are less probative than the other evidence of record on the question of continuity of symptomatology after service. See Buchanan, 451 F.3d at 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that hearing loss symptoms have not been continuous since service separation in October 1968 includes the Veteran's statement in February 2007 that hearing tests prior to 1992 did not demonstrate any hearing loss, as mentioned above. In addition, at the same February 2007 evaluation, the Veteran stated that he believed his hearing loss was related to his work experience at the Carrier Corporation. In other words, at no time (until the present service connection claim) did the Veteran relate his hearing loss to his military service. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed hearing loss is not related to his active service, specifically including the noise exposure during service. In the November 2010 VA audiological opinion, which weighs against the Veteran's claim, the examiner opined that, even recognizing the Veteran's in-service exposure to noise (which the Board does as well), the Veteran's current hearing loss was less likely as not related to his exposure to noise in service, reasoning that the Veteran had a significant history of post-service occupational noise exposure (at least 27 years), and no evidence of hearing loss via audiogram until 2007, 39 years after service separation. The November 2010 VA audiological opinion is of significant probative value because it is factually accurate, as it appears the VA examiner was informed of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning. There are no contrary opinions of record. Indeed, there are two private physicians who have related the Veteran's hearing loss to his post-service occupations. As noted above, Dr. D.'s February 2007 progress note indicates that the Veteran reported working for Carrier Corporation for 13 years as a stockman and shear set-up and operator. Prior to working for Carrier, he worked for a glass company for 14 years; he stated that there was some loud noise in that factory, but that he worked in the portion where there was hot glass pouring as opposed to the portion where there was significant loud noise. He also worked for a metal products company on a paint line from 1989 to 1992, and then began working at Carrier from 1992 to 2005. Dr. D. also noted two years of noise exposure in the military. Dr. D. opined that the Veteran's work at Carrier had a negative impact on his hearing. He noted that the Veteran had sensorineural hearing loss at a pre-employment test in 1992, but periodic hearing tests thereafter showed a progression of hearing loss which demonstrate the negative impact that noise exposure at Carrier had on his hearing. In a February 2006 report, Dr. L., another private physician, opined that the Veteran suffered from bilateral sensorineural hearing loss that was related to his noise exposure at work, noting the severe bilateral down sloping sensorineural hearing loss that had been progressive from 1992 until the most recent testing in 2004. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's hearing loss and his military service, including no credible evidence of symptoms of hearing loss during active service or continuity of symptomatology of hearing loss following service separation; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for hearing loss, and outweighs the Veteran's more recent contentions regarding in-service chronic hearing loss symptoms and post-service hearing loss symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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 a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely August 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. In addition, the letter described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, a VA opinion, and the Veteran's statements. A VA opinion was obtained in November 2010 with regard to the question of whether the Veteran's hearing loss is related to active service. To that end, 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 November 2010 VA opinion obtained in this case is adequate as to the question of whether the Veteran's hearing loss is related to active service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as a complete audiological examination and interview of the Veteran. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim decided herein has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges the argument of the Veteran's representative in a June 2013 brief that the VA examiner relied on inaccurate facts in reaching his conclusion in stating that the Veteran had 27 years of post-service occupational noise exposure when the Veteran stated that he worked on the quiet side of the glass factory for 14 years, and in stating that the first hearing loss was demonstrated in 2007, when Dr. D. noted that hearing loss was noted at a pre-employment hearing test in 1992. However, both Dr. D. and Dr. L. concluded that the Veteran's hearing loss was related to his employment at Carrier Corporation, which was after his job at the glass factory. Moreover, even if hearing loss was noted at the pre-employment test in 1992, there is still a 24 gap between service separation and the first diagnosis of hearing loss. Further, the preponderance of the lay and medical evidence of record supports the VA examiner's opinion. Thus, the VA examiner's opinion is not inadequate, as the bases for his opinion are not undermined, even if the Veteran's argument that he only had 13 years of post-service occupational noise exposure and that hearing loss was first detected in 1992 rather than 2007 are conceded as true. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs