Citation Nr: 1323642 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-09 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1956 to February 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran appeared at a Travel Board hearing with the undersigned in February 2012. A transcript is of record. In an April 2012 decision, the Board reopened the Veteran's claim and remanded it to seek records and to make a determination regarding whether further efforts to obtain the Veteran's service treatment records (STRs), which were lost in the 1973 fire at the National Personnel Records Center (NPRC), would be futile or that the records did not exist. A June 2012 memorandum in the claims file provided a formal finding of the unavailability of records from the NPRC and the Las Vegas VA Medical Center (VAMC). Therefore, the directed development was completed, and because the Board's order was fully complied with, there was no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequently, in December 2012, the Board remanded the Veteran's claim to seek more recent records, specifically from November 2012, and to schedule the Veteran for an audiology/ENT examination. Records from a November 2012 VA audiology visit have been associated with the file, and the Veteran attended a VA examination in May 2013. Thus, all actions required by the second remand have been fulfilled, and there is no prejudice for the Board to proceed. Id. A previous issue before the Board was entitlement to service connection for tinnitus. In June 2013, the RO established service connection for tinnitus; this issue is therefore not before the Board at this time. The Board must note that in reviewing the case, the Board has not only viewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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 experienced acoustic trauma in service, but symptoms of bilateral hearing loss were not chronic in service, did not manifest to a compensable degree within one year of separation, and have not been continuous since service separation. 2. The Veteran's bilateral hearing loss is not related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Duty 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, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives 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. § 5.103(a); 38 C.F.R. § 3.159 (b). 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. 38 C.F.R. § 3.159 (b)(1). 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). For service-connection claims, 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 the claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the VCAA duty to notify was satisfied by a June 2009 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, the evidence of record includes statements in support of the claim by the Veteran and his wife; private treatment records, VA outpatient treatment records; February 2012 Board hearing transcript; and several VA audiological examination reports. However, as noted above, the Board does not possess the Veteran's service treatment records because they were lost in the fire at the NPRC. When service records are unavailable through no fault of the Veteran, the Board has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Garlejo v. Derwinski, 2 Vet. App. 619, 621 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, VA has made unsuccessful attempts to obtain the Veteran's outstanding service treatment records. The Veteran has been advised of the RO's unsuccessful efforts and was requested to send any pertinent records he had. The Veteran submitted a NA Form 13055, Request for Information Needed to Reconstruct Medical Data, but it was reported that there are no sick reports after February 1953 for the 746th Armored Inf. BN. In June 2012, the RO issued a Formal Finding on the Unavailability of the Veteran's service treatment records as well as records from the Las Vegas VAMC. The memorandum indicated that all procedures to obtain records pertaining to the Veteran had been correctly followed, all efforts to obtain the needed information had been exhausted, and any further attempts were futile. For the foregoing reasons, the Board find that further efforts to obtain the Veteran's missing service records would be futile and the duty to notify the Veteran of VA's inability to obtain records, as outlined in 38 C.F.R. § 3.159(e), was satisfied. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the December 2012 remand, the Board found the VA examination from December 2005 to be inadequate. Pursuant to the remand directives, VA scheduled the Veteran for another examination, which occurred in May 2013. The May 2013 examination was adequate because the examiner reviewed the Veteran's claims file, considered the Veteran's statement as to his in-service noise exposure and his post-service history, recorded pertinent examination findings, and provided a sufficient analysis to support her conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). With respect to the aforementioned February 2012 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the element that was lacking to substantiate the claim was the nexus opinion. However, the request for another examination specifically to determine whether the Veteran's exposure to weapons caused his bilateral hearing loss was agreed to, and the case was remanded for this reason. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran voluntarily agreed to another VA examination and also indicated that there were no other medical records available to include in the record. Accordingly, the Veteran is not shown to be prejudiced on this basis. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281G.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran contends that service connection is warranted for his bilateral hearing loss due to noise exposure in service. Specifically, the Veteran asserts that he was exposed to loud noise from weapons fire while in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a)(2012). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC (controlled speech discrimination) test are less than 94 percent. 38 C.F.R § 3.385 (2012). First, as to present disability, the Board finds that the Veteran currently has bilateral hearing loss for VA purposes. Id. On a November 2012 audiogram report, auditory threshold in the left ear was 45 decibels at the 4000 Hz range. In December 2005, auditory threshold in the right ear was 45 Hz at the 3000 range and 60 Hz at the 4000 Hz range. The Board will now turn to the element of in-service injury or disease. The Board finds that the Veteran is competent to report that he was exposed to loud noise (acoustic trauma) to both ears in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). On a March 2005 Application for Compensation or Pension, via a VA Form 21-526, the Veteran reported he was exposed to noise from weapons fire. The Veteran again reported exposure to noise from weapons in a statement in support of his claim submitted in March 2005. Subsequently, in a December 2005 VA examination, the Veteran reported noise exposure from firing weapons. Later, in his January 2009 notice of disagreement, the Veteran stated he was a gunner and tank driver and was exposed to loud noise. More recently, in a statement from March 2011, the Veteran asserted that he was exposed to loud explosions and was not provided with hearing protection. The Veteran reiterated such contentions of in-service noise exposure at the February 2012 Board hearing. The Veteran's DD Form 214 also reflects his military occupational specialty (MOS) was a heavy weapons infantryman and that he was designated as expert (106 mm recoilless rifle). Given the Veteran's competency to report noise exposure and the reported noise exposure's consistency with his military duties, the Board finds the Veteran had exposure to loud noise (acoustic trauma) while in service. Although the Board acknowledges the Veteran's exposure to noise and the presence of a current disability, this is not sufficient grounds for granting service connection. Rather, the military noise exposure must cause the hearing loss. The weight of the evidence demonstrates the Veteran's currently diagnosed bilateral hearing loss is not related to loud noise in active service. The May 2013 examination report indicates that the Veteran reported military noise exposure due to weapons fire as well as noise exposure resulting from his work at the Colorado Fuel and Iron Plant as a forklift and crane operator. The Veteran also reported recreational noise exposure from using his tractor for personal farming purposes. Ultimately, the examiner concluded that the Veteran's bilateral hearing loss "is less likely than not caused by or a result of his noise exposure as a heavy weapons infantryman in the U.S. Army. The hearing loss is more likely the result of the very extensive post military noise exposure experienced by the veteran." The VA examiner based the aforementioned conclusion on a review of the claims file as well as a review of the Veteran's documented and reported history, including his statements regarding post-service noise exposure. The examiner provided a conclusion with a supportive rationale, and the May 2013 VA medical opinion is therefore probative. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). In his January 2009 notice of disagreement, the Veteran stated, "I strongly believe that my . . . bilateral hearing losss [sic] was caused by military service. . . . Since I left military service in 1958 I have not been exposed or worked with heavy equipment of such to have caused my hearing loss." Subsequently, in a March 2011 statement, the Veteran indicated that the crane he operated at the steel mill was electronically operated and that he was "required to wear hearing protection at all times." Later, while testifying at a February 2012 Board hearing, the Veteran was asked whether he was exposed to loud noise while acting as a crane operator. The Veteran responded: "No. I was loading. I was in the warehouse, the noise was away from where I worked. The material that was stored in the warehouse I had to load it on flat carts or trucks that drove in. So I was away from the machinery." The Board notes that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran cannot attribute the resultant disease and associated symptoms to his military service because identifying such a nexus requires a complex medical analysis. Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Generally, experts, such as audiologists, determine whether symptoms are indicative of bilateral hearing loss. Such diagnoses are by their nature complex, involving the consideration of noise exposure both before and after service, and cannot be made solely by observation by one's senses. For these reasons, the Board finds the statements of the Veteran regarding the etiology of his hearing loss are not competent evidence. Although the Veteran is not found to be competent to discuss the cause of his bilateral hearing loss, the Board must still consider the lay assertions of record. As described, the Veteran reported noise exposure after his separation from service. After the claim was denied, however, the Veteran altered his account of events, indicating that he was not exposed to noise post-service. Moreover, the statements made by the Veteran are internally contradictory. The Veteran contends that he was not working in an area where he was exposed to loud noise, yet he indicates that he was required to wear hearing protection at all times. If he was not working near noise, it follows that he would not need hearing protection at all times. Hence, the contradictory nature of his statements and the nature of his work as a forklift and crane operator significantly decreases the probative value of his statements regarding noise exposure while working at the steel factory. In addition, the evidence of record includes a report from a private physician assistant, "Dr. D." However, the report provided a description of tinnitus symptoms and does not show findings or treatment related to bilateral hearing loss. Similarly, the Veteran's wife provided a statement regarding her husband's hearing issues, but she only discussed symptoms of tinnitus. Therefore, these pieces of evidence are not probative on the issue of bilateral hearing loss currently before the Board. Therefore, the most probative evidence of record is the May 2013 examination report. The Board does not find evidence more probative on the element of whether there is a nexus between an in-service incurrence and the current bilateral hearing loss. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for bilateral hearing loss on a direct basis. Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. Other organic diseases of the nervous system is listed as a "chronic disease" and includes sensorineural hearing loss. See M21-1MR, Part III.iv.4.B.12.a; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995) . Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in of 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 13331 (Fed. Cir. 2013). In the present appeal, the Veteran contends that his bilateral hearing loss began in service. During the February 2012 Board hearing, the Veteran stated that he noticed a decline in his hearing since he first began firing weapons and that the condition continued to decline. After considering the entirety of the record, the Board finds that the Veteran's statements are not sufficiently credible to support a grant of service connection. The Veteran provided several inconsistent reports of time frames for treatment and worsening of symptoms. At the February 2012 Board hearing, the Veteran indicated he had only sought treatment for the past five years. Previously, in a December 2005 VA examination, the Veteran indicated that he had trouble hearing, but he only noted a "significant" change in the last three years. In the same report, the Veteran also reported that his tinnitus began in service, but he does not similarly indicate that his bilateral hearing loss began in service. Moreover, on the Veteran's application for benefits, he does not provide a date for when his disability began. Thus, the Veteran provides several inconsistent statements regarding his symptomatology for his bilateral hearing loss. In addition, in a March 2011 statement, the Veteran indicated that he had sought treatment for hearing problems while in Germany. However, VA obtained a morning report dated June 17, 1957 from Germany, and the report only listed the Veteran's name and did not indicate any form of treatment. Therefore, the Veteran's statements are inconsistent with the other lay and medical evidence of record and tend to weigh against a finding of continuity of symptomatology and the grant of the presumption under 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and other organic diseases of the nervous system (including sensorineural hearing loss) become manifest to a degree of 10 percent within 1 year from date of termination of 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. §§ 1110, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As previously discussed, the Veteran's bilateral hearing loss was not shown until decades after separation from service. Thus, the Veteran cannot benefit from the presumption. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence the claim for service connection for bilateral hearing loss, and this claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no reasonable doubt to be resolved in this issue. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs