Citation Nr: 1323147 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-36 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the claim in question. In April 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain a supplemental opinion to the December 2011 VA examination report. The action specified in the April 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's bilateral hearing loss did not have onset in service or within one year of service and was not caused or permanently aggravated by the Veteran's active military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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) (2012). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2012). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran asserts that he has hearing loss as a result of exposure to heavy weapons fire and helicopters while serving as a field medic in Vietnam during service. The Veteran's DD-214 reveals that his military occupational specialty (MOS) was a medical specialist and confirms his combat service in the Republic of Vietnam. Accordingly, the Board accepts as credible the Veteran's testimony that he was exposed to loud noise during his period of active service. A review of the Veteran's service treatment records does not reflect complaints, diagnoses, or treatment for hearing loss. He did undergo audiometric testing upon induction in April 1966 and separation in December 1968. At induction, puretone thresholds measured at 500, 1,000, 2,000, and 4,000 Hertz were 15 (30), 0 (10), 0 (10), and 20 (25) decibels in the right ear and 5 (20), 0 (10), 0 (10), and 10 (15) decibels in the left ear. In this regard, prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Thus, the April 1966 audiogram provided in the Veteran's service treatment records is assumed to reflect ASA standards. Since VA evaluates current hearing loss in ISO-ANSI standards, the units have been converted as shown in the adjoining parentheses above. At separation, puretone thresholds measured at 500, 1,000, 2,000, and 4,000 Hertz were 20, 0, 0, and 0 decibels in the right ear and 5, 0, 0, and 5 decibels in the left ear. Thus it appears that the Veteran's hearing actually improved between induction and separation from service. The April 1966 induction report showed no abnormalities regarding the ears. The December 1968 separation examination report indicates that the Veteran's ears were clinically evaluated as normal, and the Veteran denied having any ear trouble or hearing loss on the corresponding report of medical history. Post-service, there is no evidence of a hearing loss disability for decades after service. The Veteran filed his claim for entitlement to service connection for bilateral hearing loss in August 2008, approximately forty years after his separation from active service. At that time, he claimed that his hearing loss began in service. In December 2011, the Veteran was afforded a VA audiological examination. At that time, the Veteran described in-service noise exposure from helicopters, artillery fire, gun fire, and mortars. He reported developing a constant bilateral tinnitus while serving as a medic in Vietnam. He was uncertain of the exact onset of his bilateral hearing loss, but suggested that it began in service and reported that for many years, other people have observed that he has problems hearing. The Veteran denied any significant post-service noise exposure. Audiological testing revealed bilateral hearing loss that met VA requirements for a current hearing loss disability under 38 C.F.R. § 3.385 (2012). However, following a review of the Veteran's claims folder, the examiner concluded that it is less likely than not that the Veteran's current bilateral hearing loss was incurred in or related to the Veteran's active military service. The examiner noted that the damage to the ear which causes noise-induced hearing loss occurs at the time of the noise exposure- not many years later. She noted that the Veteran's hearing was within normal limits at separation from service and no significant threshold shift occurred between the Veteran's induction and separation from service. She explained that if the Veteran's in-service noise exposure had caused permanent damage to the ear in the form of hearing loss, it would have been detectable at the time of December 1968 audiological testing. As there was no hearing loss or significant change in the Veteran's hearing acuity in service, the examiner concluded that the Veteran's in-service noise exposure did not cause his current bilateral hearing loss. The examiner did not convert the April 1966 audiogram results from ASA to ISO (ANSI) units; however, the Board finds that this does not significantly affect the probative value of the examiner's opinion, as the converted test results actually show that the Veteran's hearing improved between induction and separation and are thus unlikely to change the examiner's opinion. In a May 2012 addendum, the examiner provided the following rationale for conclusion that the Veteran's bilateral hearing loss less likely than had onset in service or was caused or aggravated by the Veteran's active military service. Hearing was within normal limits on discharge and no shifts occurred between Induction and Exit. Exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift. This disappears in 16 to 48 hours after exposure to loud noise. Impulse sounds may also damage the structure of the inner ear resulting in an immediate hearing loss. Continuous exposure to loud noise can also damage the structure of the hair cells resulting in hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent threshold shift exists, and permanent damage to the inner ear. Since the damage is done when exposed to noise, a normal audiogram with no significant threshold shifts subsequent to the noise exposure would verify that the hearing had recovered without permanent hearing loss. The military defines a standard threshold shift (STS) as an average of 10 decibels or greater shift at 2000 Hertz (Hz), 3000 Hz, and 4000 Hz; or a 15 decibels or greater shift at any single frequency at 1000 Hz, 2000 Hz, 3000 Hz, or 4000 Hz. [data omitted on the Veteran's hearing acuity before, and after service] Auditory thresholds at military separation [in this case] indicated no significant threshold shifts, and hearing was well within normal limits at 500Hz through 2000 Hz, and 4000 Hz. Military noise [exposure] is conceded. However, no permanent decrease in hearing was documented at Exit, and no hearing loss was present at exit. Based on the above evidence, entitlement to service connection for bilateral hearing loss must be denied. The Board has carefully considered the Veteran's lay statements that his hearing loss had onset in service. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as the Veteran's hearing loss since separation. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran's service treatment records show that the Veteran's hearing was with normal limits at separation from service. The Board finds that objective audiological testing showing normal hearing at separation from service has greater probative value than the Veteran's subjective complaints of impaired hearing, particularly when made more than four decades later. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). There is no objective medical evidence of hearing loss in service or within one year of service. The Board has also considered whether the Veteran's current hearing loss is related to his in-service noise exposure, even if it did not have onset in service. However, a VA audiologist has concluded that it is less likely than not that the Veteran's current hearing loss disability was incurred in service or is otherwise related to the Veteran's active military service. Her opinion was reached after both an examination of the Veteran and a review of the claims folder and she provided a detailed rationale for her conclusions. The examiner's rationale centered on the fact that the Veteran's hearing was normal at the time of separation from service. The Board acknowledges that service connection for a current hearing disability is not precluded where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, an argument could be made that the December 2011 and May 2012 examination reports are contrary to the ruling in Hensley, and therefore insufficient on which to base a decision. However, the examiner explained in detail why evidence of normal hearing loss at separation from service is significant, noting that hearing loss occurs contemporaneous to impulse sounds or continuous loud noise exposure and therefore, if hearing loss occurred due to the Veteran's exposure to loud noise in service, it would be detected during audiological testing at separation from service. The Board finds that this rationale implicitly rejects the Veteran's argument of a relationship between his current hearing loss disability and his in-service noise exposure. The examiner was aware of the Veteran's lay testimony and conceded that he was exposed to loud noise in service, but explained that a relationship between the Veteran's current hearing loss and his noise exposure in service many years ago is inconsistent with the mechanics of how hearing loss develops. The Veteran appears to sincerely believe that his present hearing problems were caused by noise exposure in service; however, he has not been shown to be competent to establish an etiological nexus between any current hearing loss and his exposure to noise during his period of active duty. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has hearing loss due to noise exposure in service is too complex to be addressed by a layperson. While the Veteran is certainly competent to testify to symptoms he observed in service, such as ringing in his ears or subjective hearing impairment, he is not competent to offer an opinion as to the cause of this disability. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. The Board finds that other evidence of record, including the opinions of medical professionals who have reviewed all the evidence of record and the absence of any complaints of or treatment for any hearing loss disability until more than forty years after the Veteran's service, to be more probative in this case than the lay evidence. In sum, the competent evidence does not establish that the Veteran's currently-diagnosed hearing had its onset in service, within one year following separation, or is etiologically related to service. Approximately 40 years after separation, the Veteran filed a claim for service connection. This significant lapse of time is highly probative evidence against the Veteran's claim of a nexus between a current hearing loss and active military service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that a significant lapse in time between service and post- service medical treatment may be considered in the analysis of a service connection claim). For all the above reasons, entitlement to service connection for bilateral hearing loss is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2012); 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. 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in September 2008. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran has not indicated that are any other medical record that are relevant to his claim. He was afforded a VA medical examination in December 2011, with an addendum in May 2012. The examination and addendum are adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs