Citation Nr: 1322870 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-07 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1968. 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 Portland, Oregon. This issue was previously before the Board in November 2012, at which time it was remanded for additional development. The matter is now returned to the Board for further appellate consideration. The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that it contains no additional documents pertinent to the issues on appeal. FINDING OF FACT The evidence does not show that it is at least as likely as not that the Veteran's hearing loss is related to his military service, and sensorineural hearing loss was not shown within 1 year following service separation. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1110, 1112, 5103, 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 FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a December 2007 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in May 2013. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, VA and private treatment records, and the reports of VA examinations. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, 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). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as sensorineural hearing loss (organic disease of the nervous system) to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 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. Even though disabling hearing loss is not demonstrated at separation, a Veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board has reviewed all the evidence in the appellant'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 the appellant 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability caused by his exposure to acoustic trauma in service. The Veteran has submitted statements describing his job in service repairing jet engines, stating that he was exposed to loud aircraft noise almost constantly and even slept near the flightline. The Veteran's DD Form 214 indicates that his specialty in service was aircraft maintenance specialist. The Veteran's service treatment records include the results of three audiometric tests. The Board notes that for service department examinations conducted on October 31, 1967 or earlier, the Board ordinarily assumes that audiometric testing was conducted using ASA (American Standards Association) measurements. After that date, the Board ordinarily assumes that any audiometric testing was conducted using current ISO (International Standards Organization) measurements. At the Veteran's September 1964 enlistment examination, audiometric tests results revealed pure tone thresholds ranging from -10 to 5 decibels in the right ear and 5 to 15 decibels in the left ear at 500, 1000, 2000, and 4000 Hertz. Converting these findings to ISO measurements results in findings of 0 to 10 decibels in the right ear and 15 to 20 decibels in the left ear. The Veteran underwent audiometric testing for hearing conservation data in April 1965, which revealed pure tone thresholds at 500 to 4000 Hertz of -5 to 0 decibels in the right ear and -10 to 0 decibels in the left ear. Converting these findings to ISO measurements results in pure tone thresholds at 5 to 10 decibels in the right ear and 0 to 20 decibels in the left ear. The Veteran's September 1968 separation examination indicates ISO audiometric findings of 0 to 5 decibels at 500 to 4000 Hertz in both ears. These findings show that the Veteran's bilateral hearing was entirely within normal limits throughout his active duty service, and in fact his hearing upon separation was slightly improved from his audiometric test results upon enlistment. The service treatment records include no other complaints or treatment related to hearing loss. In March 2008 the Veteran was afforded a VA audiology examination at the Roseburg VA Medical Center by an audiologist. The examiner noted that the Veteran was had "probably received no significant exposure to noise" and that he was a hunter. The examiner found that the Veteran had right normal to moderate sensorineural hearing loss and left normal to mild sensorineural hearing loss. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 20 25 20 25 50 LEFT EAR 20 20 25 45 35 Speech recognition testing revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. While the audiometric test results indicated that the Veteran did meet the threshold for a hearing loss disability under 38 C.F.R. § 3.385, the examiner opined that the Veteran's hearing loss was not caused by or a result of his service. The examiner explained that this was because the Veteran was not exposed to significant noise in service and his service treatment records showed normal hearing bilaterally upon discharge. Because the March 2008 examiner had failed to consider the Veteran's credible lay statements regarding extensive noise exposure due to working on the flightline in service, the case was remanded for an additional VA examination. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). In January 2013 the Veteran was again afforded a VA examination by an audiologist at the Roseburg VA Medical Center. The examiner reviewed the claims file and discussed the Veteran's noise exposure in service, which included aircraft engines, flightline noise, and power supply units, as well as his exposure after service, which included working around paint mixers, electrical equipment, and machinery, and recreational firearms noise. Audiometric testing was performed, and revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 20 25 25 35 55 LEFT EAR 25 30 30 40 50 Speech recognition testing revealed speech recognition ability of 80 percent in the right ear and 92 percent in the left ear. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss, but opined that it was less likely than not caused by or a result of an event in military service. As rationale, the examiner discussed the Veteran's extensive post-service occupational and recreational noise exposure. The Veteran has not indicated that he has received any treatment related to hearing loss through VA or private medical providers at any time since his separation from service. Other than lay statements, the Veteran has submitted no additional medical evidence related to a hearing loss disability. In this case, while the Veteran has been shown to have bilateral sensorineural hearing loss of sufficient severity to warrant a disability under 38 C.F.R. § 3.385, the evidence fails to show that such a disability is related to military service, or that hearing loss manifested to a compensable degree within one year of separation from service, and therefore the preponderance of the evidence is against the Veteran's claim. The Veteran asserts that his bilateral hearing loss is caused by noise exposure while working on the flightline in service. The Board acknowledges that the Veteran is competent to describe events that occurred during military service and any symptomatology regarding his perceived hearing loss. See Barr, 21 Vet. App. 303 (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). However, as a lay person, the Veteran is not competent to provide a medical diagnosis of hearing loss as such requires medical testing, or to determine the etiology of any such hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hearing loss can have many causes, and whether the loud noises the Veteran was exposed to in service are in any way related to his current hearing loss disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). The most probative opinion on this point, therefore, was that which was rendered by the January 2013 VA examiner. The Board also notes that there is no competent medical evidence on file of a hearing loss disability, as defined by 38 C.F.R. § 3.385, until the March 2008 VA examination, almost 40 years after the Veteran's separation from service. The Veteran has also not asserted at any time that his hearing loss manifested during service or within one year of service, nor has he indicated that he had been diagnosed with or treated for hearing loss prior to March 2008. Thus, the Board finds that the Veteran has failed to provide evidence of continuity of symptomatology indicative of a chronic condition that has existed since the Veteran's separation from service. The absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of a low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (prolonged periods without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Moreover, the Board notes that the only probative, professional medical opinion to address the medical relationship, if any, between the Veteran's bilateral hearing loss disability and his military service, that of the January 2013 examiner, weighs against the claim. The January 2013 VA examiner, who was fully apprised of the Veteran's in-service history of noise exposure and discussed it in his examination report, nevertheless opined that the Veteran's bilateral hearing loss was less likely than not related to his service, and provided a list extensive post-separation noise exposure to support this finding. The Board finds that the examiner's opinion, which was based on review of the Veteran's documented and asserted medical history and a comprehensive audiological examination, constitutes the only fully probative evidence of record on the medical nexus question. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that would, in fact, support the claim for service connection for bilateral hearing loss. The Board also points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs