Citation Nr: 1322646 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-32 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from May to September 1952, from October 1954 to August 1958, and from June 1990 to June 1996. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In February 2012, the Board reopened the claim of service connection for bilateral hearing loss and remanded the matter for additional development. In March 2013, the Board requested a Veteran's Health Administration (VHA) opinion, which was received in April 2013. In February and May 2013, the Veteran submitted additional evidence along with a waiver of initial consideration of this newly submitted evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. 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. The Veteran's bilateral hearing loss disability did not manifest during the Veteran's first and second periods of active duty, was not compensably disabling within one year of separation from his first and second periods of active duty, and is unrelated to his first and second periods of active duty. 2. The Veteran's bilateral hearing loss disability clearly and unmistakably pre-existed his third period of active duty. 3. The Veteran's pre-existing bilateral hearing loss disability clearly and unmistakably underwent no clinically identifiable permanent increase in severity, including beyond its natural progression, during his third period of active duty. CONCLUSION OF LAW A bilateral hearing disability was not incurred in or aggravated by active service, nor may a sensorineural hearing loss be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in July 2008 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations and obtaining medical opinions. In this case, the Veteran was afforded a VA examination in July 2008 and a supplemental opinion was provided in August 2008. In April 2010, he was afforded another VA examination and a medical opinion was provided. As will be discussed below, the opinions provided by the VA examiners were inadequate to make a determination on the claim. Therefore, the Board requested a VHA opinion in March 2013. In April 2013, a VA physician reviewed the claims file, noted the pertinent medical history, and provided the requested medical opinion with supporting rationale. The Veteran does not argue that any specific finding is missing and no deficiencies are apparent. Hence, the Board finds that all questions necessary to render the determination made herein have been answered. The medical examinations, along with the VHA opinion, are therefore adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). In February 2012, the Board remanded the claim, in part, to obtain any outstanding service treatment records (STRs) from the Veteran's reported Reserve and National Guard service. A March 2012 letter from the Delaware Department of Military Affairs reflects that a search was conducted, but there were no records on file for the Veteran and it was suggested that a request be made with the National Personnel Records Center (NPRC). In November 2012, the NPRC indicated that all of the Veteran's available STRs were mailed. Despite a January 2013 formal finding that the Veteran's Delaware National Guard records were unavailable, a review of the STRs received from the NPRC actually includes records from the Delaware National Guard. Therefore, it appears that the Veteran's STRs are complete. As the AOJ took efforts to obtain any outstanding STRs, requested that the Veteran provide information as to his health providers, and scheduled the Veteran for a VA examination, the Board finds that the AOJ substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Factual Background The Veteran's May 1952 enlistment and September 1952 discharge examinations reflect that his hearing was 15/15 in each ear on whispered voice test (i.e., normal). At discharge, he denied having any ear, nose, or throat trouble. The Veteran's November 1954 enlistment examination also reflects that his hearing was 15/15 in each ear on whispered voice test. He denied having any ear, nose, or throat trouble. Prior to November 1967, service departments used ASA units to record puretone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the tables below show the ASA measurements with the comparable ISO (ANSI) measurements in parentheses. A June 1958 hearing conservation audiogram reflects that the Veteran had been issued ear plugs, but did not wear them. Pure tone thresholds, in decibels, were noted as follows: HERTZ For ISO add 500 (15) 1000 (10) 2000 (10) 3000 (10) 4000 (5) RIGHT 5 (20) 5 (15) 0 (10) -10 (0) -10 (-5) LEFT 5 (20) 10 (20) 0 (10) -5 (5) 0 (5) At his July 1958 discharge examination, the Veteran's hearing was 15/15 in each on whispered voice test. He denied any ear, nose, or throat trouble. Pure tone thresholds, in decibels, were noted as follows: HERTZ For ISO add 500 (15) 1000 (10) 2000 (10) 3000 (10) 4000 (5) RIGHT 5 (20) 5 (15) 0 (10) -- -10 (-5) LEFT 0 (15) 5 (15) 5 (15) -- -10 (-5) Between the Veteran's second and third periods of active duty, hearing loss was first noted during a February 1986 examination for the Army Reserve. Prior to this examination, a hearing loss disability was not shown and he denied having had or having hearing loss in March 1973 and October 1981. The February 1986 examination report notes that the Veteran had left-sided hearing loss and wore a hearing aid. Puretone thresholds with the hearing aid, in decibels, were as follows (in ISO units): HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 15 15 40 45 35 LEFT 35 15 15 15 15 5 A January 1987 examination for the Army Reserve notes that the Veteran had high frequency hearing loss status post left ear stapedectomy. Puretone thresholds, in decibels, were as follows (in ISO units): HERTZ 500 1000 2000 3000 4000 6000 RIGHT 50 45 35 45 35 80 LEFT 25 15 25 30 60 55 A July 1989 examination for the Army Reserve notes that speech reception was good with and without hearing aids and that the Veteran was scheduled for a right stapedectomy in October 1989. Puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 60 50 60 -- -- -- LEFT 25 15 -- 50 65 75 The Veteran's third period of active service began in June 1990. An entrance examination is not of record. In February 1991, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 20 20 30 35 90 LEFT 10 10 30 40 60 60 In July 1991, the Veteran reported having hearing loss. It was noted that he underwent a left stapedectomy in August 1984 and a right stapedectomy in August 1989. Puretone thresholds were: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 15 20 30 50 80 LEFT 20 15 20 40 65 60 In July 1995, the Veteran was noted to have bilateral high frequency hearing loss. Puretone thresholds were: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 20 25 40 45 -- LEFT 15 20 40 45 65 80 In February 1996, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 25 15 20 40 40 99 LEFT 20 15 30 55 70 60 At a March 1996 otolaryngology consultation, it was noted that the Veteran had a history of hearing loss since 1990. It was noted that he had had stapedectomies in 1983 and 1988. The assessment was asymmetric hearing loss status post stapedectomy. In April 1996, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 20 15 30 35 85 LEFT 20 20 25 50 60 55 A May 1996 record from the Army Audiology and Speech Center reflects that the Veteran had a long-standing history of asymmetric hearing loss with stapedectomies performed in both ears in the 1980s. The results of an auditory brainstem response report were consistent with bilateral cochlear space occupying lesions. In June 1996, the Veteran was discharged from active duty. Post-service, during a November 1996 VA examination, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 30 45 LEFT 25 25 45 50 70 The November 1996 VA examiner and Dr. Luft, a private physician, indicated that there was a possible conductive component to the Veteran's hearing loss. The July 2008 and April 2010 VA examiners diagnosed the Veteran with a mixed type hearing loss and VA outpatient treatment record continue to show mixed type hearing loss. Regarding etiology, the July 2008 VA examiner opined that the Veteran's hearing loss did not begin during active duty and was not made worse during active duty. The April 2010 VA examiner opined that the hearing loss pre-existed his third period of active duty and remained "basically unchanged" during that time period. Later, however, he contradicted his earlier statement by indicating that hearing loss did not exist prior to service. In April 2013, Dr. J.F., a VA otolaryngologist, provided an opinion in response to the Board's request for a VHA opinion. He reviewed the claims folder in detail, including the service medical records and other pertinent documents. He opined that the medical records showed clear and unmistakable evidence that the Veteran's bilateral hearing loss developed between the second and third periods of active duty - between August 1958 and June 1990. He also opined that the pre-existing hearing loss clearly and unmistakably was not aggravated during the third period of active duty. In this regard, he noted that the service medical records during the third period of active duty failed to note progression or aggravation beyond what would be considered normal progression. The physician also opined that it was less likely than not that the Veteran's bilateral hearing loss was related to noise exposure during his first and second periods of active duty. He opined that the primary etiology of the Veteran's hearing loss was a combination of otosclerosis and presbycusis rather than an in-service activity or event. In May 2013, the Veteran submitted lay statements from his wife and son. His wife stated that she believed the Veteran's hearing loss began while he was in the Air Force during his second period of active duty. She said he complained of whistling noise in both ears and that the ear plugs were nothing more than cotton or wax. She said his hearing loss became noticeable after he began working as a letter carrier in 1963 and that he began wearing a hearing aid in 1971 or 1972. His son also stated that he recalled that the Veteran always had difficulty with his hearing since he was very young (born in 1964) until the mid to late 1970s. He said the Veteran received treatment in the late 1970s or 1980s and that his hearing improved, but then worsened after he returned from active duty in the 1990s and has continued to worsen over time. Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For veterans who served for 90 days or more during a war period or after December 31, 1946, service connection may be presumed for certain chronic diseases, such as an organic disease of the nervous system (sensorineural hearing loss), if manifest to a compensable degree within one year after discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Where there is a chronic disease shown in service, 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). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Specific to claims for service connection, hearing loss is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Unless otherwise noted, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis In this case, the evidence of record clearly and unmistakably demonstrates that the Veteran's bilateral hearing loss disability manifested between his second and third periods of active duty. This is supported by the contemporaneous medical record, lay statements of the Veteran and his family members, and the April 2013 VHA opinion. The Veteran asserts that his hearing loss was a result of noise exposure during his first and second periods of active duty and/or was aggravated by his third period of active duty. The Board will first address whether his hearing loss is related to his first and second periods of active duty before addressing whether it was aggravated by his third period of active duty. The Veteran served with the Air Force from September 1952 to August 1958 and his occupational specialty was aircraft prop repairman. The Board concedes that it is highly probable that he was exposed to hazardous noise during this time period. The Board also notes that he has a current bilateral hearing loss disability that meets VA's threshold requirements under 38 C.F.R. § 3.385. The only remaining question is whether there is a nexus between his current bilateral hearing loss and in-service noise exposure during his first and second periods of active duty. According to his wife's lay statement, the Veteran began having noticeable hearing loss after he began working as a postal carrier in 1963 - about 5 years after his second period of active duty. Hearing loss is first documented in a February 1986 annual examination report for the Army Reserve. The lay and medical evidence does not reflect that a hearing loss disability manifested during the first or second periods of active duty or to a compensable degree within one year after he was discharged. The question remains whether there is a nexus between the Veteran's first and second periods of active duty and his current bilateral hearing loss disability. See 38 C.F.R. § 3.303(d). The July 2008 and April 2010 VA examiners did not opine directly as to whether the Veteran's bilateral hearing loss was related to noise exposure during his first and second periods of active duty. However, the April 2013 VHA opinion directly answered this question. Dr. J.F. opined that it was "less likely than not" that the Veteran's bilateral hearing loss was related to his first and/ second periods of active duty, to include exposure to hazardous noise therein. The physician explained that the etiology of the Veteran's hearing loss disability was a combination of otosclerosis and presbycusis rather than an in-service injury or event. This is supported by the April 2010 VA examiner's opinion, which noted that the Veteran had stapedectomies in the 1980s and that this procedure is generally conducted as a result of inherited otosclerosis. The only other opinions addressing this question are that of the Veteran and his family members. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran's bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The question of etiology in this case goes beyond a simple and immediately observable cause-and-effect relationship. Even assuming the lay assertions regarding etiology were competent, the Board finds the VHA opinion discussed in detail above is much more probative. The next question the Board must address is whether the Veteran's hearing loss was aggravated by his third period of active duty. Because there is no entrance examination of record, the Veteran is presumed to have been in sound condition at the time he entered active service in June 1990. To rebut the presumption of soundness, VA has the burden of demonstrating that there is clear and unmistakable evidence that the hearing loss disability both pre-existed service and clear and unmistakable evidence that it was not aggravated during service. In this case, the Board finds that the evidence clearly and unmistakably demonstrated both that the bilateral hearing loss disability pre-existed the Veteran's third period of active duty and was not aggravated by service. As noted above, there is clear and unmistakable evidence that the Veteran's hearing loss disability manifested between his second and third periods of active duty - sometime between 1958 and 1990. This is supported by the contemporaneous medical evidence and the lay statements of record. Furthermore, the April 2013 VHA opinion directly addresses this issue. Dr. J.F. unequivocally opined that the Veteran's hearing loss developed between the second and third period of active duty, noting that he had normal hearing at the time of separation from the second period of active service and the existence of hearing loss prior to June 1990. He described the evidence supporting this conclusion as "overwhelming." Having determined that the Veteran's hearing loss clearly and unmistakably pre-existed his third period of active duty, the Board must now determine whether there is clear and unmistakable evidence that his pre-existing hearing loss was not aggravated by his third period of active duty. The April 2013 VHA opinion specifically addresses this question. Dr. J.F. reviewed the audiology evaluations conducted prior to, during, and after the Veteran's third period of active duty. He opined that the evidence of record clearly and unmistakably showed that the Veteran's pre-existing hearing loss was not aggravated by service and that any increase in disability was due to the natural progression of the disease. This is supported by the April 2010 VA examiner's observation that the audiology evaluations remained basically unchanged during this time period and that there appeared to be no additional hearing loss. It is also supported by the July 2008 VA examiner's opinion that the Veteran's hearing loss improved or stayed about the same between 1989 and 1996 and was not made worse by his military duty. While the July 2008 and April 2010 VA examiners' opinions themselves do not rise to the level of clear and unmistakable evidence, they support and are consistent with the April 2013 VHA opinion. The only other opinions addressing this question are that of the Veteran and his family members. To the extent they assert that the Veteran's hearing worsened or was aggravated during his third period of active duty, they are competent to report such observations and the Board has no reason to doubt their credibility. The Board finds, however, that the contemporaneous audiology evaluations and the Dr. J.F.'s opinion are much more probative on this point and that this evidence clearly and unmistakably demonstrates that the Veteran's pre-existing hearing loss was not aggravated by his third period of active duty. In sum, the Board finds that the Veteran's bilateral hearing loss did not manifest in or to a compensable degree within one year of his first and second periods of active duty; that his bilateral hearing loss is unrelated to his first and second periods of active duty; that the evidence clearly and unmistakably demonstrates that the his bilateral hearing loss pre-existed his third period of active duty; and that the evidence clearly and unmistakably demonstrates that his pre-existing bilateral hearing loss was not aggravated by his third period of active duty. For these reasons, entitlement to service connection for a bilateral hearing loss disability is not warranted. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs