Citation Nr: 1323561	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  09-25 079	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


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 April 1970 to December 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in part, denied service connection for bilateral hearing loss.

In March 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional records and afford the Veteran a new VA examination.  The action specified in the March 2011 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 United States Court of Appeals for the Federal Circuit (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).

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 served as an armor crewman, and reported noise exposure from artillery.  He had a tour of duty in the Republic of Vietnam from September 1970 to June 1970.  He is considered competent to relate a history of noise exposure during service.  See 38 C.F.R. § 3.159(a)(2).

Service treatment records show that on the Veteran's pre-induction examination in May 1969, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
15
25
LEFT
5
5
10
15
15

During the Veteran's November 1971 separation examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
NR
5
LEFT
5
5
5
NR
5

Post-service, there is no medical evidence of a hearing loss disability until decades after service, when the Veteran filed his claim.  The Veteran indicated that he had been privately tested during the summer of 1972, and was told that he had problems with mid-range frequencies.  However, there is no record corroborating this assertion.  

The Veteran was afforded a VA examination in April 2008 and was diagnosed with bilateral sensorineural hearing loss.  However, the examiner concluded that current hearing loss was not related to noise exposure in service because the Veteran's hearing was normal at the time of his separation, and therefore changes since that time cannot be attributed to military noise exposure.  It does not appear that a claims file review was requested or conducted.

In March 2011, the Board remanded this matter to attempt to obtain records of the audiological examination the Veteran reportedly underwent in 1972.  In April 2011, the Veteran was provided with VA Form 21-4142 Authorization and Consent to Release Information and asked to either complete the enclosed form with the name of the private treatment provider who tested the Veteran's hearing in 1972 or forward copies of these records to VA.  The Veteran did not respond.

In April 2011, the Veteran's claims folder was also referred to the VA audiologist who examined the Veteran in April 2008.  After reviewing the Veteran's claims folder, she again concluded that it is less likely than not that the Veteran's current hearing loss had onset in service or was caused or permanently aggravated by the Veteran's active military service.  She explained that "[d]elayed onset hearing loss does not occur, meaning that once the Veteran was away from military noise, his hearing loss would not have started after the fact."  Thus, the Veteran's normal hearing loss at discharge from service is evidence that his in-service noise exposure did not cause hearing loss.

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 and there is no evidence that the Veteran's hearing worsened between induction and discharge. 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).  Further, to the extent that there was a 25 decibel loss at 4000 Hertz in the right ear on pre-induction examination, the Board notes that the Veteran examiner clearly reviewed the record and concluded that the Veteran's hearing on induction was within normal limits.  Moreover, the Board notes that there is clearly no worsening of any arguable preexisting right ear hearing loss in service.  See, e.g., November 1971 separation examination; see also 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). 

Additionally, there is no objective medical evidence of a compensable hearing loss disability within one year of service.  While the Veteran has claimed that his hearing was tested within one year of service and that this testing showed evidence of diminished hearing, he has not submitted any evidence that can substantiate this assertion.  

Even if the Board assumes that the Veteran's hearing was tested in the summer of 1972 and that this testing showed some worsening in his hearing acuity, it is impossible to determine if this hearing loss was sufficiently severe to be compensable under VA regulations.  See 38 C.F.R. §§ 3.307, 3.309.

VA attempted to obtain copies of the 1972 hearing test, but the Veteran failed provide the appropriate releases.  The Veteran is reminded that, although the VA has a duty to assist in developing the claim at issue, this is not a one way street and that he cannot stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate.  Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992).  "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role."  Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992).  

Pursuant to Walker, supra, the Board has considered whether the Veteran experienced a continuity of bilateral hearing loss symptomatology since his service discharge.  However, the Veteran's STRs as interpreted by a VA audiologist do not show hearing loss.  Moreover, there is no evidence of a shift in the Veteran's puretone thresholds during service that might denote some change or worsening in hearing acuity.  Thus, the STRs do not show any hearing loss or change in hearing during active service and no chronic disease is shown in service.   

With respect to the Veteran's statements regarding continuous hearing loss since service, in determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). 

In this regard, any assertions of long-term hearing loss (onset in 1970-71) were not presented until decades after the Veteran's discharge from service and only after he filed a service connection claim for hearing loss in 2007.  As such, there would be reason to question the credibility of any lay information provided by the Veteran to the effect that the onset of his hearing loss was during service and that it has been chronic and continuous since that time.  See Macarubbo v. Gober, 10 Vet. App. 388 (1997).  Further, with regard to the decades-long evidentiary gap between active service and the earliest post-service findings of bilateral hearing loss of record, the lack of any evidence of contemporaneous continuing complaints, symptoms, or findings for many years between the period of active duty and the first evidence of bilateral hearing loss is itself evidence which tends to show that hearing loss has not been chronic and continuous since service.  Therefore, the credible evidence weighs against a finding of a continuity of symptoms after service.  See 38 C.F.R. § 3.303(b).  

The Board has also considered whether the Veteran's current hearing loss is otherwise 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 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 April 2008 and April 2011 examination reports are contrary to the ruling in Hensley, and therefore insufficient on which to base a decision.  However, the examiner explained 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 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 for decades 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 from service, or is etiologically related to service.  

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), 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 January 2008.  This letter informed the Veteran of what evidence is required to substantiate his claims, 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 submitted private medical records from Primary Care Networks.  The appellant was afforded a VA medical examination in April 2008, with an addendum opinion in April 2011 following review of the claims folder.  

The examination is 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).  

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.




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs