Citation Nr: 1324285	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  09-36 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1964 to July 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and March 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The Veteran testified at a Board hearing before the undersigned Veteran's Law Judge (VLJ) in May 2013.  A copy of the transcript of that hearing has been associated with the claims file.  


FINDINGS OF FACT

1.  The Veteran was exposed to loud noise during active service.

2.  The Veteran's hearing loss did not manifest to a compensable degree within one year after separation from service. 

3.  The Veteran's hearing loss is not causally or etiologically related to the noise exposure during 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, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The record shows that through a VCAA letter dated December 2007, VA's notice requirements were met.  

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service treatment records, VA examination reports, a private nexus opinion, and lay evidence.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran.

The Veteran was afforded a VA examination in March 2009 and February 2012.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings.  Therefore, the examination reports are adequate to decide the claim of service connection.  Thus, further examination is not necessary regarding the issue on appeal.

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing 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 asked specific questions directed at identifying whether the Veteran met the criteria for service connection, and sought to identify any pertinent evidence not currently associated with the claim.  

Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  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). 

Service Connection - Hearing Loss

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.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

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

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system and therefore a presumptive disability.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran contends that he has hearing loss that is related to his active service.  The Veteran reported noise exposure during active service, while participating in training exercises, including weapons qualifications, and his proximity to an explosion of an M14 simulator while he was sleeping.  

Service treatment records are silent regarding any complaints, treatment, or diagnosis of hearing loss.  No changes in the Veteran's hearing acuity is revealed when the report of his service separation audiometer is compared with the report made at service entrance.  

Currently, the Veteran reports a history of continued symptoms of hearing loss since active service.  This, however, is inconsistent with the foregoing medical evidence of record, as well as with the contemporaneous medical history he gave at service separation when he denied any history of complaints or symptoms of hearing loss.  Accordingly, the Board does not find the Veteran's currently reported history to be credible, and no probative value is assigned to this contention of chronic hearing problems since service.  In this regard, the Board also notes the Veteran has not demonstrated that he has expertise in medical matters, and the etiology of the Veteran's hearing loss is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence.  Therefore, his opinion that his hearing loss is related to in-service noise exposure is not probative.  

The Veteran was afforded a VA examination in March 2009.  The examiner reviewed the Veteran's claims file and noted the Veteran's lay history and his audiometric findings at separation from service.  At that time, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
35
30
60
LEFT
10
10
30
35
60

The Veteran's speech recognition scores were 96 percent bilaterally.  Based on these findings, the Board notes that the Veteran has hearing loss disability for VA purposes.

The examiner diagnosed moderately-severe high frequency sensorineural hearing loss.  He reviewed the Veteran's file and noted hearing within normal limits bilaterally at induction and separation.  Therefore, he found that as the Veteran left service with normal hearing levels,  his military noise exposure has not had an effect on his hearing.  

The Veteran was afforded another VA examination in February 2012.  The examiner again noted the Veteran's history of noise exposure and audiological testing.  He noted the normal hearing in both ears at all test frequencies throughout service.  The examiner noted no significant threshold shift in either ear at any test frequency.  The examiner noted the Veteran's assertion that he can't remember being tested in a sound proof booth or an examiner using an audiometer to perform any of his examinations while in service.  The examiner, however, found that he could only comment on the fact found in the Veteran's service treatment records, which show normal hearing acuity in both ears on all hearing tests performed while in service.  

The Veteran submitted a private nexus opinion noting that the Veteran's hearing loss appears to be related to his noise exposure while on active duty as a Range Supervisor for several years.  The examiner noted that he reviewed the Veteran's service records and found that no adequate audiometric test was performed with an audiometer, in a sound proof room.  Also, the Veteran indicated to the examiner that he was given a whisper test, which the examiner does not believe to be a valid hearing test.  He also noted that the Veteran's hearing test showed severe hearing loss in the higher frequencies, which is consistent with his degree of tinnitus.  The examiner opined that a whisper test would not have adequately evaluated these findings and confirmed severe bilateral hearing nerve damage.  The examiner doubts he would have had all zero level test results as shown in his military records. 

The record contains three medical opinions.  Two VA examiners opined that the Veteran's hearing loss did not manifest during service and is not causally related to noise exposure during service.  The Board finds these opinions to be of more probative value than the private examiner's opinion.  They are entirely consistent with the credible evidence of record.  The private examiner's opinion is of less probative value as it is based solely upon the Veteran's current allegations that he did not receive an audiometric test, but rather received a whisper test.  Although the Veteran claims that he received a whisper test, the examiners at the time of entry, periodic evaluation, and separation did not fill in the section of the form related to whisper tests, but rather provided numeric findings.  The Board finds the documentation to be more reliable than the Veteran's history provided decades after separation and made in connection with a claim for benefits.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).  The Board is not bound to accept medical opinions that are based on history supplied by the Veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background.  Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993).  The Board may reject a medical opinion that is based on facts provided by the appellant that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the appellant that formed the basis for the opinion.  See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005).  Because the private medical opinion is based on an factual background that has not been accepted, it is not probative.  

Based on the evidence cited above, the Board finds that a preponderance of the evidence is against the claim.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the appeal is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals






Department of Veterans Affairs