Citation Nr: 1324377 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 07-17 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and L.S. ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to July 1971 and from March 1974 to April 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). A hearing was conducted before the undersigned in September 2012; a transcript of this hearing is of record. In May 2013, the Veteran's representative submitted additional medical evidence directly to the Board, with a waiver of initial Agency of Original Jurisdiction consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDINGS OF FACT 1. The Board accepts the Veteran's assertion of noise exposure in service as credible and consistent with his established service. 2. Although the Veteran currently has hearing loss in each ear to an extent recognized as a disability for VA purposes, hearing loss was normal at separation, there is no evidence of hearing loss for several years after service, and the only competent, probative opinion to address the question of whether there exists a nexus between alleged in-service noise exposure and the Veteran's bilateral hearing loss weighs against the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the Agency of Original Jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a September 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for bilateral hearing loss, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter also provided general notice to the Veteran regarding VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. The November 2009 rating decision reflects the initial adjudication of the hearing loss claim after issuance of the September 2009 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Medical evidence associated with the claims file consists of service and VA treatment records, as well as the report of a March 2013 VA examination. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. In addition, the Board notes that the case was remanded in February 2013 to provide the Veteran with an examination and an opinion regarding his bilateral hearing loss. On remand, the Veteran was afforded a VA examination in March 2013. In an addendum opinion in April 2013, the VA examiner provided a detailed opinion, with clear rationale, about the etiology of the Veteran's bilateral hearing loss. Accordingly, the requirements of the remand were accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that no additional action to further develop the record in connection with the claim on appeal is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service 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). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Veteran asserts that his exposure to loud noise while in service has caused his claimed bilateral hearing loss. Specifically, he asserts that in-service noise exposure to helicopters and machine gun, artillery, and mortar fire resulted in hearing loss. At the outset, the Board notes that the Veteran's service personnel records reflect that he served as a light weapons infantryman for almost five years (over two periods of service), to include service in Vietnam. Thus, the Board accepts the Veteran's assertion of in-service noise exposure as credible and consistent with his established service. That fact notwithstanding, the Board also finds that the record presents no basis for a grant of service connection for bilateral hearing loss. Service treatment records reflect that at entry into his first period of service in November 1969, audiometric findings, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 N/A 5 LEFT 10 5 0 N/A 0 At separation in July 1971, the Veteran was only afforded a whispered voice test, which revealed normal hearing. Service treatment records reflect that at entry into his second period of service in March 1974, audiometric findings, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 N/A 5 LEFT 10 5 5 N/A 15 On a Report of Medical History, dated the same month, the Veteran denied ear trouble and hearing loss. At separation from his second period of service in October 1976, audiometric findings, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 N/A 15 LEFT 10 5 10 N/A 5 The above-described evidence reflects that a bilateral hearing loss disability was not shown during service. The Board notes, however, that the absence of in-service evidence of hearing loss is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Regarding a current disability, the Veteran has demonstrated a hearing loss disability for purposes of VA compensation. On April 2013 VA examination, audiometric findings, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 50 65 70 LEFT 25 25 45 65 70 The above-cited evidence reflects that the Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes (pursuant to 38 C.F.R. § 3.385). However, despite the presence of current disability, and the credible evidence of in-service noise exposure, the claim must be denied on the basis of medical nexus. Here, the post-service evidence does not reflect any indication of a hearing loss disability for approximately 36 years after active military service. During service (to include at the time of separation), the Veteran did not have a hearing loss disability. Post service, the Veteran first underwent VA examination in August 1987, which also did not reveal a hearing loss disability. This indicates that even after a decade following separation, the Veteran did not have a hearing loss disability. Thus, the evidence does not establish hearing loss in service or for many years thereafter. The Board points out that the passage of many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection for the disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the only competent opinion on the question of nexus between bilateral hearing loss and service is adverse to the claim. An April 2013 opinion provided by a VA audiologist in conjunction with an examination stated that it was less likely than not that the Veteran's hearing loss was caused by or a result of military noise exposure. As rationale, he noted that the Veteran's entrance examinations showed hearing levels within normal limits. While the Veteran was only provided with a whisper voice test at separation from his first period of service, the audiologist noted that the normal findings on his entrance examination into his second period of service indicate that he most likely did not have any hearing problems at separation in March 1971. The audiologist also noted that the Veteran's separation examination in October 1976 was also normal. After reviewing the Veteran's service treatment records, the audiologist found that there were no significant changes in hearing levels according to Department of Defense guidelines before the very first examination in 1969 and the last examination in 1976. Thus, he concluded that the noise exposure that the Veteran reported occurred during military service apparently did not cause hearing loss. The Board accepts the nexus opinion in connection with this claim as highly probative, based as it was upon an examination of the Veteran and full consideration of his documented history and assertions. Significantly, neither the Veteran nor his representative has presented or identified a contrary competent opinion that, in fact, supports the claim. Finally, as for any direct assertions by the Veteran, his family, and/or his representative that there exists a medical relationship between his bilateral hearing loss disability and service, such assertions provide no basis for allowance of the claim. In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). In this case, the Veteran's daughter testified that she noticed that her father had hearing problems approximately 25 years ago. Board Hearing Tr. at 20-21. While the Veteran's daughter is competent to report observable symptoms pertaining to hearing loss, she is not competent to provide a nexus opinion relating the Veteran's bilateral hearing loss to his in-service noise exposure. She is also not competent to state whether the Veteran had a hearing loss disability at the time she witnessed the Veteran's decreased hearing. Thus, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs