Citation Nr: 1323774 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 07-24 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from January 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran submitted a Notice of Disagreements (NOD) with this determination in April 2007, and perfected his appeal in August 2007. In December 2010 and January 2013, the Board remanded the issue on appeal for further examination. This development has now been completed and the claim of service connection for right ear hearing loss is ready for review. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The evidence does not demonstrate that the Veteran's currently diagnosed right ear hearing loss is related to his active service CONCLUSION OF LAW The criteria for a grant of service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 in accordance with 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). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in February 2007 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. This letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). An additional notice letter was sent to the Veteran in December 2010 regarding new and material evidence. Although this letter was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the June 2011 and April 2013 supplemental statement of the cases (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA must also make reasonable efforts to assist the Veteran 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. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA and private medical records and providing the Veteran with VA examinations in July 2007, April 2011, and March 2013. Significantly, the Veteran has not 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. Additionally, the Veteran submitted June 2011 and April 2013 Expedited Processing Waiver Forms, which note that the Veteran did not have any additional evidence regarding the claim on appeal. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131. If a chronic disorder, such as sensorineural hearing loss, is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.385, 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110, 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Background The Veteran contends that his current right ear hearing loss is due to his active service. Specifically, he contends that he was exposed to high frequency noise levels while performing his duties as a radioman in the Navy. The Veteran has a current disability of hearing loss in the right ear pursuant to 38 C.F.R. § 3.385. This is demonstrated in the private treatment and VA examination reports of record. Specifically, the April 2011 VA examination demonstrated auditory thresholds over 40 decibels in the 2000, 3000, and 4000 Hz frequencies in the right ear. By way of history, the Veteran's January 1964 enlistment audiometric evaluation did not show hearing loss pursuant to VA regulations in the Veteran's right ear. The September 1967 discharge hearing screening included a Whisper Voice Test on which the Veteran scored a 15/15, which was considered normal. However, the separation examination did not include an audiometric evaluation, which the Court has determined to be a more precise indicator of hearing problems than Whisper Voice Testing. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). Nevertheless, the Veteran's service treatment records are void of documentation of any complaints or clinical findings of hearing loss. However, as noted above, the absence of documented hearing loss while in service is not fatal to a hearing loss claim provided that the Veteran submits evidence of a current disability that is causally related to service. See Ledford, 3 Vet. App. at 89 (1992); Hensley, 5 Vet. App. at 159-160 (1993). The record contains a May 1988 hearing evaluation. The physician noted that the Veteran worked for the Santa Fe Railway between 1968 and 1987, as a switchman and brakeman. He was subject to noise exposure without ear protection. He complained of constant bilateral tinnitus and hearing loss. The Veteran was diagnosed with bilateral sensorineural hearing loss, predominately high-frequency, presumably secondary to noise exposure. In a March 1998 record, a private treating physician noted that the Veteran had been exposed to industrial noise while working on the railroad for the past 20 years as a brakeman. The Veteran was diagnosed with bilateral noise-induced hearing loss. These findings were also documented on the December 1997 Railroad Retirement Board report. The Veteran submitted a September 2006 private hearing evaluation. The physician noted that the Veteran had a long history of noise exposure. The physician noted that the Veteran won a settlement from the railroad in regard to noise induced hearing loss. He was a radio operator in the Army from 1964 to 1967. The physician diagnosed the Veteran with bilateral sensorineural hearing loss. The physician stated that hearing loss existed on the audiometry screening in 1964, but that the discharge physical in 1967 did not contain meaningful hearing data. He concluded that the Veteran would consult the VA for hearing disability. The Veteran was first afforded a VA examination in July 2007. The Veteran reported that he did not know when his hearing loss began. He attributed his hearing loss to high-frequency noise exposure as a radioman during his military service. He reported military noise exposure form radios, Morse code, and teletype machines, and stated that hearing protection was not worn. He also reported unprotected occupational noise exposure as a railroad brakeman from 1968 to 1987. He reported that he received compensation for hearing loss from the railroad in 1989, but did not have any copies of hearing tests prior to 1988. He also reported that prior to the military service, he was exposed to loud noise from hunting and farming. The VA examiner diagnosed him with mild to moderately-severe sensorineural hearing loss with excellent speech recognition abilities for the right ear. The examiner concluded that it was impossible to determine if the Veteran's current hearing loss was aggravated by military service prior to his employment with the railroad without resorting to mere speculation. The Veteran was afforded another VA examination in April 2011. The examiner noted that the Veteran had multiple occupational hearing exams and was awarded occupational disability due to railroad noise. The examiner noted that the Veteran had only left ear hearing loss at enlistment, and only the Whispered Voice Test was done at discharge. He was assigned a MOS of radio operator. The Veteran reported active duty exposure to radio, teletype, and Morse code equipment. He also had extensive unprotected noise exposure as a civilian, working on the railroad. A progression of his hearing loss was noted during employment and he was granted occupational disability in 1989. He also reported some exposure to noise from farming and hunting. Upon examination, the VA examiner diagnosed the Veteran with mild to severe sensorineural hearing loss of the right ear. The examiner concluded that the Veteran's hearing loss was less likely than not caused by or a result of in-service noise exposure. The examiner noted that the actual noise level from a radioman assignment were rarely sufficient to cause significant hearing impairment. The Veteran worked for the railroad for 20 plus years, beginning a year or so after discharge. His hearing dramatically worsened during this employment per his history and he was eventually awarded compensation from his employers for hearing damage. The examiner also noted that there were no complaints of hearing difficulty in service records. Available information suggested a less than 50 percent probability that his hearing loss was caused by or aggravated beyond normal progression by specific service noise. Additionally, a March 2013 VA medical opinion was obtained. The examiner stated that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The April 2011 VA examiner was unavailable, and another VA physician provided the opinion. The physician noted that the claims file was reviewed. The physician noted that the insufficient evidence in the service medical records made it difficult to opine, without some speculation, whether or not the Veteran suffered hearing loss due to in-service noise exposure. The examiner discussed the April 2011 VA examiners negative etiology opinion. Additionally, the physician noted the September 2006 and March 1998 private audiologists' opinions that noted high frequency sensorineural hearing loss due to noise exposure. However, neither provided an opinion regarding the specific etiology. The physician further stated that the Veteran's Navy rating was not associated with a high probability of noise exposure. It was known that right ear hearing was normal at enlistment. It was not known with certainty the status of the right ear at discharge. However, it was known that after his military service the Veteran worked for nearly 20 years for the railroad, his hearing worsened during that time, and he was eventually awarded compensation for hearing loss. The physician concluded that it would seem to follow that the right ear hearing loss was more likely due to civilian occupational noise exposure. Further, he was in agreement with the April 2011 VA audiologist, that "available information suggested a less than 50 percent probability that his loss and tinnitus were cause by or aggravated beyond normal progression by specific service noise." Analysis The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for right ear hearing loss. Although he has a current diagnosis of right ear hearing loss pursuant to 38 C.F.R. § 3.385, the existing medical evidence does not show that this condition was manifested in service or are otherwise related to service. Additionally, the evidence does not show that a right ear hearing loss disability manifested within one year of separation. Thus service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran also has failed to provide any objective indication of right ear hearing loss until May 1988 private hearing evaluation, more than 20 years after his military service ended. The lapse of so many years after his separation from service and the first documented suggestion of this claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Of equal or even greater significance, while the Veteran has submitted medical evidence indicating he has been diagnosed with right ear hearing loss, there simply is no medical evidence of record etiologically linking right ear hearing loss to the Veteran's military service. As previously mentioned, the April 2011 VA examiner concluded that the Veteran's hearing loss was less likely than not caused by or a result of in-service noise exposure. The examiner noted that the actual noise level from a radioman assignment were rarely sufficient to cause significant hearing impairment. The Veteran worked for the railroad for 20 plus years, beginning a year or so after discharge. His hearing dramatically worsened during this employment per his history and he was eventually awarded compensation from his employers for hearing damage. Available information suggested a less than 50 percent probability that his hearing loss was caused by or aggravated beyond normal progression by specific service noise. Additionally, while the March 2013 VA physician stated that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation, he ultimately stated an opinion and rationale for the Veteran's right ear hearing loss. Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the Board should ensure that any such finding is well supported by the facts and data and reflects that the examiner has considered 'all procurable and assembled data, 'by obtaining all tests and records that might reasonably illuminate the medical analysis). The physician further stated that the Veteran's Navy rating was not associated with a high probability of noise exposure. It was known that right ear hearing was normal at enlistment. It was not known with certainty the status of the right ear at discharge. However, it was known that after his military service the Veteran worked for nearly 20 years for the railroad, his hearing worsened during that time, and he was eventually awarded compensation for hearing loss. The physician concluded that it would seem to follow that the right ear hearing loss was more likely due to civilian occupational noise exposure. The Board has carefully considered the Veteran's assertions that he has right ear hearing loss that is related to his active service. However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. See Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, the Board rejects the Veteran's unsubstantiated lay contentions because medical evidence in the file shows his right ear hearing loss did not have its onset in-service, but first manifested more than 20 years after service. The VA examiners' opinions noted above are based on review of the claims folder, including the Veteran's service treatment records, and the opinions thoroughly discuss the Veteran's pertinent in-service and post-service medical records. The VA examiners offered a detailed explanation of the rationale for the opinions rendered that incorporates both the facts of the Veteran's case and the pertinent medical principles. Given the VA examiners' access to the claims folder and the thoroughness and detail of the opinion, the Board finds these opinions to be highly probative in determining whether service connection for right ear hearing loss is warranted. While the Veteran has established that he currently suffers from right ear hearing loss, the evidence of record does not support a finding that this condition is the result of his time in service. In reaching the decision above the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against entitlement to service connection for right ear hearing loss, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection right ear hearing loss must be denied. ORDER Service connection for right ear hearing loss is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs