Citation Nr: 1322790 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-37 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board remanded this matter in July 2011 for further evidentiary development. The Appeals Management Center (AMC) continued the denial of the claim as reflected in the May 2012 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. FINDING OF FACT The preponderance of the evidence shows that the Veteran's current bilateral hearing loss is not related to active military service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active military service, nor may it be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, 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 the claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that a letter dated in March 2009 satisfied the duty to notify provisions prior to the initial AOJ decision that denied entitlement to service connection for hearing loss. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for hearing loss. The Veteran was notified of how VA determines the disability rating and effective date if his claim is granted. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, VA treatment records, a VA examination report dated in April 2009 with a July 2009 addendum, an August 2011 VA medical opinion and lay statements from the Veteran. The April 2009 VA examination report shows that the examiner obtained an oral history of the Veteran's hearing loss and evaluated him. The examiner provided a diagnosis of the Veteran's claimed condition. The examiner did not provide an etiology opinion, because she was not provided with a copy of the claims file. A separate audiologist in July 2009 reviewed the claims file and provided a negative opinion with a supporting rationale that was based on the medical evidence of record. The Veteran was provided with another VA opinion in August 2011. The August 2011 report reflects that the audiologist reviewed the Veteran's claims and provided an etiological opinion, which appears to be based on both the medical and lay evidence of record and reflects consideration of medical principles. Accordingly, the Board concludes that the April 2009 VA examination in conjunction with the July 2009 and August 2011 VA medical opinions are adequate for adjudication purposes. As noted in the Introduction, this issue was previously remanded in July 2011 to contact the Veteran for the purpose of inquiring whether his employer conducted periodic medical examinations to include hearing tests and if so, to either submit this evidence or provide the proper information so that VA might request these examinations, to obtain a fee-basis audiogram dated in February 2009, as well as any other relevant VA treatment records and to provide the Veteran with a VA opinion. The August 2011 VA opinion shows that the examiner reviewed the claims file and addressed the issues raised by the Board to include considering whether there is any lay evidence indicating the Veteran had hearing loss in service. Accordingly, the Board finds that there has been substantial compliance with the July 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the record presents no basis for further development to create any additional evidence to be considered in connection with the issues currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis The Veteran contends that he currently has bilateral hearing loss that is related to acoustic trauma in military service. Specifically, he asserts that he experienced acoustic trauma from exposure to artillery as a field artillery specialist. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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). Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that threshold levels above 20 decibels indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. As noted above, hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. An April 2009 VA audiology examination report shows auditory thresholds of higher than 26 decibels (dB) in three of the required frequencies for both ears. The examiner determined that the audio evaluation revealed normal to moderate sensorineural hearing loss, bilaterally. Thus, the evidence of record reveals that the Veteran has a current bilateral hearing loss disability. The Veteran contends that he injured his ears in military service due to loud noise exposure as a field artillery specialist. The Board observes that the Veteran's DD Form 214 indicates that his military occupational specialty (MOS) during service was a Field Artillery Crewman. In a case where a veteran is seeking service connection for any disability, due consideration must be given to the places, types, and circumstances of the veteran's service. 38 U.S.C.A. § 1154(a) (West 2002). As a field artillery specialist it is likely that the Veteran was exposed to loud noises as part of his MOS. Accordingly, the Board finds that the Veteran's history of in-service acoustic trauma is credible. Nonetheless, injury during service does not, by itself, warrant service connection. Rather, there must be competent evidence that the Veteran has a current disability that was incurred in service. 38 C.F.R. § 3.303. The Veteran's service treatment records do not reveal that the Veteran had any complaint or diagnosis of hearing loss during active military service. A January 1970 separation examination shows that the Veteran's ears were evaluated as normal in the right ear and some hearing loss in the left ear at 500 dB. See Hensley v. Brown, 5 Vet. App. 155 (1993) (threshold levels above 20 decibels indicate at least some degree of hearing loss). However, the VA audiologist that provided an addendum opinion in July 2009 to the April 2009 VA examination and a separate VA audiologist in March 2011 reviewed the record and determined that the Veteran had normal hearing at separation. Thus, the preponderance of the evidence shows that the Veteran did not have a hearing loss disability during military service. The Board observes that sensorineural hearing loss (as an organic disease of the nervous system) may be presumed to have been incurred in service if it manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011). There is no evidence that the Veteran was diagnosed with bilateral sensorineural hearing loss within one year after discharge from active military service. Therefore, the Veteran's bilateral hearing loss disability is not presumed to have been incurred in active military service. The Board notes that the Veteran does not contend and the evidence does not show that the Veteran had a continuity of symptomatology of hearing loss since service. In this regard, the Veteran reported in the April 2009 VA examination that the onset of his bilateral hearing loss was approximately nine years prior to the examination. Accordingly, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current hearing loss disability and his active military service. In this regard, a March 2011 VA opinion shows that a VA audiologist determined that it is not likely that the Veteran's hearing loss is related to military service, because hearing acuity thresholds were within normal limits bilaterally from 500 to 4000 Hz at separation from service and there were no complaints of hearing loss in the service treatment records. The Board concludes that March 2011 VA audiologist's opinion is probative and persuasive as the examiner reviewed the Veteran's claims file including his service treatment records and provided a clear rationale based on the evidence of record to include consideration of lay evidence and medical knowledge. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Furthermore, the record does not contain any competent medical evidence or opinion that would indicate the Veteran's bilateral hearing loss is related to the loud noise exposure in service. The Board acknowledges that the Veteran provided a lay opinion that his bilateral hearing loss is related active military service. While he is competent to report observable symptoms such as difficulty hearing, in this case, determining the etiology of the Veteran's sensorineural hearing loss requires medical expertise. This disorder is simply not the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Moreover, the Veteran's lay contentions of a causal relationship between a current bilateral hearing loss disability and active military service are outweighed by the more probative VA opinion that was provided in August 2011. As the probative evidence of record does not establish a relationship between the Veteran's current hearing loss and his period of active military service, the Board finds that the preponderance of the evidence weighs against the claim and service connection for bilateral hearing loss is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs