Citation Nr: 1323138 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 12-11 872 ) 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: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1963 and he had additional service with the United States Naval Reserve. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which denied service connection for bilateral hearing loss and tinnitus. In an April 2012 notice of disagreement, the Veteran only appealed service connection for bilateral hearing loss. The Veteran testified at February 2013 hearing before a Decision Review Officer (DRO) at the RO. The hearing transcript has been associated with the claims file. 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 had some degree of hazardous noise exposure in service from firing weapons during basic training. 2. The Veteran did not experience chronic symptoms of hearing loss in service or continuous symptoms of hearing loss after service separation. 3. Hearing loss did not manifest to a compensable degree within one year of service separation. 4. Bilateral hearing loss is not related to noise exposure in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 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. Id. 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. Id. In a November 2011 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The November 2011 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Board is 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 service treatment records, Reserve service treatment records, VA treatment records, a VA examination, and the Veteran's statements and testimony. A December 2011 VA examination addressed service connection for bilateral hearing loss. 38 C.F.R. § 3.159(c)(4) (2012). 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 December 2011 VA audiological examination and opinion obtained is adequate because the examination was performed by a medical professional, was based on a review of the record and history and symptomatology from the Veteran, and included a thorough examination. The VA examiner offered a relevant medical opinion and provided supporting reasons for the opinion offered. See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations 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). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, the sensorineural hearing loss is an organic disease of the nervous system and, thus, is "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown 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. 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. If a condition 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 served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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). In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Specific to claims for service connection, impaired hearing 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 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. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. In rendering a decision on appeal the Board must also 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. 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"). 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 the 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). Service Connection Analysis The Veteran contends that hearing loss is related to noise exposure during basic training, and noise exposure related to his dentistry duties in service. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence demonstrates that currently diagnosed bilateral hearing loss is not related in-service noise exposure. The Veteran has currently diagnosed bilateral hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385 and has tinnitus. On the authorized VA audiological evaluation in December 2011, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 65 75 LEFT 15 20 40 60 70 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear. Accordingly, the Board finds that the Veteran has met the threshold criteria for establishing a current hearing loss "disability" in both ears for VA purposes in accordance with 38 C.F.R. § 3.385. The Board finds that the Veteran had credibly reported some degree of exposure to acoustic trauma in service. During the December 2011VA examination and in testimony provided at the February 2013 DRO hearing, the Veteran identified in-service exposure to weapons, to include M1 and .45's and 5-inch caliber guns during basic training, and he identified exposure noise from high speed drills associated with his MOS duty as a dentist. The Veteran's DD Form 214 shows that he served as a dentist in service with a specialty number of 0335. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS of 0300-0399 in General Dentistry have a low probability of exposure to hazardous noise. The Board finds that the Veteran is competent to describe noise exposure in service, and the Board finds that his report of exposure to at least some noise from firing weapons during basic training is credible. While the Board also finds that the Veteran is credible in identifying exposure to drill noise in service, the Board finds based on information provided by the Duty MOS Noise Exposure Listing that the weight of the evidence shows that drill noise associated with the Veteran's duty in general dentistry was not hazardous. The Board finds that the Veteran did not experience chronic symptoms of hearing loss in service and he did not experience continuous symptoms of hearing loss after service separation. Service treatment records appear to be complete and do not reflect any complaints, diagnoses, or treatment related to hearing loss. Periodic examinations associated with the Veteran's Reserve service, dated in March 1955 and June 1957, and a June 1961 enlistment examination show that the Veteran's hearing was 15/15 in each ear on whispered voice testing. Additionally, the Board finds that the June 1963 separation examination does not reflect hearing loss at separation. See Hensley, 5 Vet. App. at 155 (holding that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss.). On the separation audiological evaluation in June 1963, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -5 (5) -5 (5) 10 (15) LEFT -10 (5) -10 (0) -10 (0) 0 (10) 5 (10) The Board notes that prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. 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, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The absence of service treatment records showing in-service audiometric evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court held in Hensley, that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. See Hensley, 5 Vet. App. at 159. Competent evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Id. The Board finds, however, that the competent, credible, and probative evidence of record does not establish a nexus between current hearing loss and identified noise exposure in service. In this case, service treatment records do not reflect complaints of hearing loss in service, nor does the Veteran contend that he experienced hearing loss symptoms in service. While the Veteran identified symptoms of tinnitus in service during a February 2012 DRO hearing, he did not identify chronic symptoms of hearing loss in service or continuous symptoms since service separation. The earliest post-service evidence of record, showing complaints related to hearing loss. is an August 2011 VA audiology consult which identified a diagnosis of sensorineural hearing loss. For these reasons, the Board finds that the weight of the evidence shows that the Veteran did not experience chronic symptoms of hearing loss in service or continuous symptoms of hearing loss after service separation. The Board finds that hearing loss did not manifest to a compensable degree within one year of service separation. The December 2011 VA examination provides the earliest post-service audiometric data showing a hearing disability, and is dated 48 years after the Veteran's separation from service. The Board finds that the weight of the evidence demonstrates that the currently diagnosed bilateral hearing loss is not related to noise exposure in service. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. A December 2011 VA examiner opined that current hearing loss was not at least as likely as not caused by or a result of noise exposure in service. In her reasoning, the VA examiner noted that the Veteran had Navy service from 1961 to 1963 as well as Reserve service from 1951 to 1961, and she noted the Veteran's exposure to a hand piece and high speed drill noise in service. The VA examiner reasoned that hearing was completely normal at separation. The examiner stated that exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift, which usually abates in 16 to 48 hours after the exposure. She stated that impulse noise or continuous and repeated exposure to loud noise may also result in permanent hearing loss. The examiner reasoned that since the damage from noise exposure occurs at the time of the exposure, a normal audiogram subsequent to the noise exposure would verify that the hearing recovered without permanent hearing loss. The Board finds that the December 2011 VA examiner's opinion was based on an accurate factual background consistent with the Board's own findings, and the VA examiner provided sufficient reasons for the opinion rendered. While the Veteran contends in his May 2012 substantive appeal that evidence did not take into consideration noise from basic training completed during Reserve service in 1955 and 1956, the Board finds that the Veteran's reported noise exposure during basic training and his Reserve service were discussed and considered by the December 2011 VA examiner. Additionally, Reserve service treatment records, which are associated with the record, were reviewed and do not reflect complaints related to hearing loss. In this case, the Board finds that the VA examiner, an audiologist, who has reviewed the Veteran's records and considered lay statements provided by the Veteran with regard to noise exposure in service has provided competent, credible, and probative evidence showing that currently diagnosed hearing loss is less likely than not related to service. The evidence of record does not otherwise establish a nexus between current hearing loss and tinnitus and noise exposure in service. Insomuch as the Veteran has attempted to establish a nexus through his own lay assertions, the Board finds that absent symptoms of hearing loss in service or for decades post-service, the etiology of his hearing loss falls outside the realm of common knowledge of a lay person and the Veteran is, thus, not competent to provide evidence on the issue of causation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Absent competent, credible, and probative evidence of a nexus between bilateral hearing loss and noise exposure in service, the Board finds that bilateral hearing loss is not related to service. For these reasons, the Board finds that service connection for bilateral hearing loss is not warranted. Because the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs