Citation Nr: 1323086 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-00 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in New Orleans, Louisiana, which denied the Veteran's claims for service connection for bilateral hearing loss, hypertension, and rashes. In a letter dated on October 21, 2008, the Veteran was notified of the decision. On October 27, 2008, the RO received the Veteran's notice of disagreement (NOD) as to bilateral hearing loss. A statement of the case (SOC) was issued in December 2009 and the Veteran filed a timely substantive appeal. On October 13, 2009, the RO received an NOD pertaining to the denial of service connection for hypertension and rashes. In June 2012, the RO issued an SOC. There is no indication from the information of record that the Veteran subsequently filed a substantive appeal with respect to either claim. Accordingly, these issues are not before the Board for appellate consideration. In June 2009 rating action, the RO, in pertinent part, denied the Veteran's claims for service connection for posttraumatic stress disorder (PTSD) and skin cancer. In October 2009, the Veteran filed an NOD. By a June 2012 rating action, the RO granted service connection for PTSD. Also in June 2012, the RO issued an SOC pertinent to the issue of entitlement to service connection for skin cancer, including as due to exposure to herbicides. There is no indication from the information of record that the Veteran subsequently filed a substantive appeal. Accordingly, this issue is not before the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran has been diagnosed with bilateral hearing loss and he is competent to report the circumstances of his service and his symptoms. 2. The report of the July 2008 VA audiological consultation is competent evidence that the Veteran does not experience hearing disability as the result of his active duty service. 3. The preponderance of the evidence is against a finding that the Veteran has hearing loss due to any incident of his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the issue on appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, 21 Vet. App. at 303 (concerning varicose veins); see also Jandreau, supra, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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 Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). A July 2008 pre-adjudication letter explained the evidence necessary to substantiate a claim for service connection. The letter also notified the Veteran how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains service treatment records, reports of post-service VA medical treatment, and a VA audiological examination report, dated in July 2008. VA has a duty to ensure the resulting medical opinion is adequate. Barr, 21 Vet. App. at 303, 312. The examiner from the July 2008 VA audiological examination reviewed the Veteran's claims file. She also interviewed and examined the Veteran, and provided a pertinent nexus opinion. The July 2008 examination is adequate to decide this claim. The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claim. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012). Service Connection The Veteran seeks service connection for a hearing disability claimed as the result of in-service noise exposure while he was stationed in Vietnam. He alleges that although his Military Occupational Specialty (MOS) was a heavy equipment operator, he nonetheless participated in search and destroy missions in the jungle. The Veteran reports that on one occasion while he was riding in the back of a truck, the truck was hit by enemy fire and he sustained bilateral perforated eardrums. The Veteran's service records confirm that he served in Vietnam from September 1966 to September 1967, and verify that his MOS was as a heavy equipment operator. The Veteran's statements regarding in-service acoustic trauma and experiencing bilateral perforated eardrums are credible. However, the preponderance of the evidence is against the claim and the appeal will be denied. 38 C.F.R. § 3.102. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With chronic disease shown as such in service 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). 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). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. See also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McLain v. Nicholson, 21 Vet. App. 319 (2007). Certain chronic disabilities, to include certain types of hearing loss to the extent they may constitute an organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. The Court of Appeals for Veterans Claims has endorsed VA's interpretation of the law which indicates that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993), citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. The Veteran's service treatment records are negative for any complaints or findings of hearing difficulty. In June 1965, he underwent an enlistment examination. Audiometric testing showed puretone thresholds (converted from American Standards Association (ASA) to International Standards Organization (ISO)) of 10, 5, 5, and 0 decibels in the right ear, and 10, 5, 0, and 0 decibels in the left ear at 500, 1,000, 2,000, and 4,000 Hertz (Hz), respectively. (ASA values have been converted to ISO standards to facilitate data comparison.) The records reflect that in October 1967, he was treated for an ear infection. In March 1968, he underwent an expiration of term of service (ETS) examination. Although he stated that he had ear, nose, or throat trouble, he specifically denied hearing loss. The audiological examination revealed that the Veteran had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, and 4,000 Hz as follows: 5, 5, 5, and 10 decibels, respectively. In the left ear for the same frequencies, he had puretone air conduction threshold levels of 5, 5, 5, and 10 decibels. Thus, the Veteran's hearing was normal upon his enlistment and ETS examinations. The Veteran's service treatment records are negative for any complaints or treatment for hearing problems, and do not show hearing loss as defined in 38 C.F.R. § 3.385 (2012). His service personnel records confirm that he served in Vietnam from September 1966 to September 1967, and verify that his MOS was as a heavy equipment operator. The records also show that the Veteran's unit (the 557th Engineer Light Company) engaged in combat when it participated in Operation Cedar Falls while in Vietnam. For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to grant service connection as to the in-service event. Colette v. Brown, 82 F.3d 389 (1996). Under the statute, in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2010). However, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. Gregory v. Brown, 8 Vet. App. 563 (1996). There is sufficient evidence that the Veteran engaged in combat during his service in Vietnam. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Thus, his account of having experienced acoustic trauma and bilateral perforated eardrums is presumed credible and by law presumed. See 38 U.S.C.A. § 1154(b) (West 2002). However, the question remains whether there is competent evidence of a nexus between the Veteran's current bilateral hearing loss disability and service, to include in-service noise exposure. However, the preponderance of the evidence as to a nexus between the Veteran's in-service noise exposure and his current disorder is against the claim. There is no competent evidence linking the Veteran's hearing loss to service. A VA audiological examination was afforded in July 2008. The examiner stated that she had reviewed the Veteran's claims file, and observed that according to the Veteran's service treatment records, he had normal hearing bilaterally from 500 to 4,000 Hz upon his June 1965 enlistment examination. In October 1967, the Veteran was treated for an ear infection and in April 1968, he was treated for sinusitis. The examiner noted that the audiogram from the Veteran's March 1968 separation examination showed normal hearing bilaterally from 500 to 4,000 Hz. It is clear that the examiner considered the Veteran's assertions of in-service acoustic trauma. The examiner stated that according to the Veteran, on one occasion while he was in Vietnam and in the back of a truck, enemy fire hit the truck and blew off the back tires. During the incident, the Veteran sustained bilateral perforated eardrums. His MOS was as a heavy equipment operator (bull-dozers, graters, front-loaders, tractor trailers). Following his discharge, he worked as a fireman, in the plants (machinery with hearing protection), off-shore, and as a salesman. He denied any recreational noise exposure. The audiological examination revealed that the Veteran had puretone air conduction threshold levels in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz as follows: 45, 40, 35, 45, and 55 decibels, respectively, with a puretone average of 43.75 decibels. In the left ear for the same frequencies, he had puretone air conduction threshold levels of 45, 40, 45, 55, and 65 decibels, with a puretone average of 51.25 decibels. Speech discrimination percentages were 96 percent in the right ear and 88 percent in the left ear. The diagnosis was bilateral mild to moderately severe sensorineural hearing loss. The examiner opined that the Veteran's bilateral hearing loss was not a result of his military noise exposure. The Veteran's entrance and separation audiograms revealed normal hearing bilaterally from 500 to 4,000 Hz. According to the American College of Occupational and Environmental Medicine (October 2002), most scientific evidence indicated that previously noise exposed ears were not more sensitive to future noise exposure and that hearing loss due to noise did not progress once the exposure to noise was discontinued. The Veteran has a current bilateral hearing loss disability pursuant to the VA criteria as noted in the July 2008 VA examination. See 38 C.F.R. § 3.385; McLain v. Nicholson, 21 Vet. App. 319 (2007). However, the Veteran's current bilateral hearing loss disability is not found to be related to or caused by any event in service. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993), and Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, the Board places greater weight of probative value on the opinion of the VA July 2008 examiner. Such opinion was rendered by a qualified medical professional who has the clear expertise to opine on the matter at issue in this case. In addition, the examiner was able to interview the Veteran and she was aware of the Veteran's in-service noise exposure and his in-service bilateral perforated eardrums. The examiner also reviewed the Veteran's claims file, including the most pertinent evidence therein, and provided a rationale for her opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing factors for determining probative value of medical opinions). No positive medical opinion with regard to etiology was provided. The Veteran contends that he has experienced hearing loss from active service through the present time. Service treatment records included no reference to complaints of hearing loss. While the absence of any mention of any complaints in the service treatment record is not dispositive to a denial of the claim, as it bears upon medical nexus evidence, the first documented complaint of any hearing problems comes from the Veteran's May 2008 claim, almost four decades after his discharge from active service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim). The fact of this chronology must be considered as it bears upon the question of nexus between the claimed hearing disability resulting from service and the current diagnosis. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to provide an opinion as to the etiology of his hearing loss. The Veteran is not competent to opine on medical matters such as diagnoses or etiology of medical disorders, and his opinion as to his bilateral hearing loss and its relationship to his service is therefore entitled to no weight or probative value. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The Board finds the preponderance of the evidence is 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 in not applicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs