Citation Nr: 1323140	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  08-16 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for right ear hearing loss.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION

The Veteran served on active duty from April 1972 to April 1975.  

This case came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded this issue in September 2011.

In June 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.  

Since the September 2011 Board remand, the RO granted the Veteran's claim for service connection for left ear hearing loss in a March 2012 rating decision.  The Veteran has not disagreed with the assigned disability rating or the effective date.  Therefore, the matter of service connection for left ear hearing loss has been resolved and is not in appellate status.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). 

In January 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA).  The requested opinion was received in March 2013.  The Board provided the Veteran a copy of that opinion and provided an opportunity to respond in April 2013.  The Veteran thereafter responded that he had no further argument and asked that the appeal proceed.  


FINDING OF FACT

Right ear hearing loss disability was not shown in service or for years thereafter, and the most probative evidence indicates that the Veteran's current right ear hearing loss is not related to service.

CONCLUSION OF LAW

The requirements for establishing service connection for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) 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 the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  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, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121.

In this case, an October 2006 letter provided the Veteran with notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  This letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  

Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, service personnel records, VA treatment records, private treatment records, VA examination reports, and hearing testimony.

As noted above, this case was previously before the Board in September 2011.  In the September 2011 remand, the Board instructed that the Veteran's VA treatment records since March 2011 be obtained, and that the Veteran undergo a VA examination.  These VA treatment records were obtained and the Veteran underwent such examination in November 2011.  A February 2012 addendum opinion as well as an opinion from a VHA specialist were also obtained.  The directive of the September 2011 remand has thus been accomplished.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his right ear hearing loss claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ identified the issues to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection.  Additionally, the Veteran volunteered his treatment history and symptoms since service.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Therefore, he 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 notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Thus, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

The Veteran contends that service connection is warranted for right ear hearing loss due to his exposure to noise from jet aircraft during service.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996).  

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops sensorineural hearing loss to a degree of 10 percent or more within one year from separation from service, such disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309.

The Board has reviewed all the evidence in the record.  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).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

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, 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. 

"[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The Veteran alleges that his current right ear hearing loss is attributable to acoustic trauma sustained in service.   

Service treatment records are silent as to any complaints of or treatment for hearing loss.  An April 1972 pre-induction audiological examination revealed the following pure tone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
0
0
0

Subsequent service treatment records do not reflect any subjectively reported complaints of diminished hearing or other ear problems, nor do they indicate any objective findings of hearing loss. 

An April 1975 separation audiological examination revealed the following pure tone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT
0
0
0
0
10

The Veteran underwent a VA audiological examination in December 2006.  He reported that, during service, he was an aviation fuels repairman on the flight deck of aircraft carriers which exposed him to excessive noise from jet aircraft on a daily basis.  He stated that he had post-discharge occupational noise exposure in his work operating heavy equipment and driving a water truck in and out of excessive noise areas in the oil fields.  He also reported occasional tool use at home and weapons fire when hunting and seasonal chain saw use.  Testing showed pure tone thresholds to be as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
10
30
35
55

The speech recognition score using Maryland CNC testing was 96 percent in the right ear.  The examiner diagnosed mild to moderately severe right ear sensorineural hearing loss, with loss beginning at 2000 Hz.  The examiner opined that the Veteran's hearing loss was not caused by or a result of military noise exposure.  The examiner reasoned that the Veteran's hearing was normal at discharge.  

The Veteran underwent another VA audiological examination in November 2011.  Testing showed pure tone thresholds to be as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
30
25
30
45
80

The speech recognition score using Maryland CNC testing was 78 percent in the right ear.  The examiner diagnosed right ear sensorineural hearing loss in the frequency range of 500 to 4000 Hz.  The examiner noted that hearing was found to be well within normal limits at the time of enlistment.  At the time of separation, a significant shift in hearing for the left ear was documented.  Based on this information, the examiner stated that the documented hearing loss/decibel changes in service were the first manifestations of the Veteran's current hearing loss.  The examiner opined that the Veteran's hearing loss is at least as likely as not caused by or a result of an event in military service.  However, as it was unclear whether the examiner's opinion pertained to both ears or only the left ear, an addendum was sought specific to the right ear hearing loss.

A February 2012 VA examination addendum reflects that the examiner's statement that hearing was found to be well within normal limits at the time of enlistment and separation.  The examiner stated that there was not a significant shift in hearing during this time and opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service.   

A VHA opinion was requested by the Board in January 2013.  The VHA opinion was received in March 2013.  The specialist provided a detailed summary of the audiological examinations in the file.  The specialist noted that, based on findings reported on the November 2011 VA examination, the Veteran appeared to demonstrate a mild to severe hearing loss with fair word recognition ability in the right ear.  She opined that because a significant threshold shift was not noted in the right ear during the time of military duty, it is not likely that the Veteran's current right ear hearing loss is a result of military noise exposure.  She noted that hearing thresholds at the time of discharge were within normal limits and comparison of enlistment and discharge examinations did not reveal a significant threshold shift in the right ear.  The examiner explained that hearing loss due to acoustic trauma is expected to be immediately evident post trauma, and hearing loss related to military noise trauma, if present, would have been measured on the discharge exam.  The examiner reasoned that, since the discharge exam revealed typical hearing with no significant threshold shift noted, it is not likely that current levels of hearing loss are related to military noise exposure.  She concluded that because there is no medical literature to suggest that acoustic trauma causes progressive hearing loss and no significant threshold shift was noted on the discharge exam, the currently measured hearing loss in the right ear is not likely related to military noise exposure.    

Upon review of the record, the Board finds the evidence establishes that the Veteran has right ear hearing loss disability for VA purposes.  However, after a careful and thorough review of the evidence, the Board finds that the preponderance of the evidence is against the claim. 

Here, the Veteran's service treatment records reveal no complaints of right ear hearing loss, and his hearing tests showed hearing within normal limits.  The earliest medical evidence showing the presence of some right ear hearing loss is dated in 2006.  In short, there is no competent evidence of hearing loss disability during service or for years thereafter.  Thus, the question in this case is whether the Veteran's current right ear hearing loss is causally related to his military service, to include noise exposure therein.

The Board has considered the opinion from the November 2011 VA examiner that the Veteran's hearing loss is at least as likely as not caused by or a result of an event in military service.  However, as noted above, such opinion was unclear as to whether it pertained to both ears or only the left ear.  A February 2012 addendum opined that the hearing loss was not related to the Veteran's military service.  However, as the rationale was not fully sufficient, the Board sought the VHA opinion.  The March 2013 VHA specialist provided a detailed rationale for the opinion that the Veteran's right ear hearing loss is not likely related to military noise exposure.  As the VHA opinion was provided following review of the claims folder, included consideration of the VA examination findings, and provided a detailed rationale for the opinion provided, the Board affords this opinion the greatest probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).

The Board recognizes the Veteran's contentions that his present right ear hearing loss is due to his military service, to include noise exposure therein.  However, there is no indication that the Veteran has any specialized training such that he is competent to render an opinion as to the diagnosis or etiology of hearing loss, as such matters require specialized testing and training to determine.  Accordingly, the Veteran's opinion as to the etiology of his present right ear hearing loss is not competent medical evidence.  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).  Moreover, whether the symptoms the Veteran claims to have experienced in service or following service are in any way related to his current right ear hearing loss is a matter that requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  Thus, the Board finds the opinion of the March 2013 VHA specialist is of greater probative value on this point than the Veteran's lay contentions.

For the reasons set forth above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for right ear hearing loss, and the claim must be denied. 

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).



ORDER

Service connection for right ear hearing loss is denied.



____________________________________________
K.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs