Citation Nr: 1324562	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  05-20 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty military service from September 1977 to January 1983 and had active duty for training (ACDUTRA) from February 1976 to July 1976.  He also served in the Army Reserves.   

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Board remanded this matter in December 2007, September 2009, September 2011 and December 2012 for further evidentiary development.  The RO continued the denial of the claim as reflected in the May 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration.


FINDING OF FACT

The preponderance of the evidence shows that the Veteran's current bilateral hearing loss disability is not related to active military service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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.  38 C.F.R. § 3.159(b).  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).  

With regard to claims for service connection for a disability, 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).  Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id.

After careful review of the claims folder, the Board finds that letters dated in September 2005 and March 2006 satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In this regard, the September 2005 letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for hearing loss.  The letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  The letters requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran.  The March 2006 letter informed the Veteran how VA determines the disability rating and effective date if his service connection claim is granted.  

The information provided in the September 2005 letter satisfied most of the duty to notify provisions prior to the initial AOJ decision in October 2005.  However, the Veteran was informed on how VA determines a disability rating and effective date subsequent to the initial AOJ decision in the letter dated in March 2006.  The Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, given sufficient time to respond and the AOJ readjudicated the case by way of the statement of the case issued in March 2007 after the notice was provided.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The claims file contains the Veteran's service treatment records, VA treatment records, Social Security disability records, VA examination or opinion reports dated in October 2006, March 2007, June 2010 (with August 2010 addendum), July 2012 and January 2013 and lay statements from the Veteran.

The October 2006, March 2007 and June 2010 VA examinations show that the examiners reviewed the claims file, obtained a history of hearing loss from the Veteran and examined the Veteran's hearing loss.  The examiners determined that the test results were inconsistent, unreliable and invalid.  The VA examiners in October 2006 and March 2007 did not provide a rationale.  The June 2010 VA examiner in an August 2010 addendum determined that the Veteran has some degree of bilateral hearing loss; however, it is not related to service.  The Board determined that the rationale was not adequate and remanded for another opinion (and VA examination if deemed appropriate).  

The Veteran was provided with a VA examination in July 2012.  The examiner also determined that the results were inconsistent and did not reflect maximal effort.  The examiner documented that she reinstructed and encouraged the Veteran throughout the testing with no improvement in his admitted responses.  She determined that the test results were considered invalid and unreliable.  The examiner reviewed the claims file and provided an opinion with a supporting rationale.  Thereafter, in a December 2012 remand, the Board requested that the examiner address the Veteran's in-service complaints of hearing loss.  The July 2012 VA examiner reviewed the claims and provided an opinion in January 2013 with a clear explanation that discusses the in-service hearing loss complaints and it appears to be based on both the medical and lay evidence of record and medical knowledge.  Accordingly, the Board concludes that the January 2013 VA opinion is adequate for adjudication purposes.  

As discussed above, the Veteran has been provided with four VA examinations by three different audiologists and he gave inconsistent and unreliable results at all of four examinations.  The July 2012 VA examiner determined that it is highly unlikely that reliable results will be obtained in the future as the evidence suggests that the Veteran has never provided consistent responses during testing for compensation and pension purposes.  The Board finds that the Veteran is not entitled to another VA examination as he was provided with numerous opportunities to evaluate his hearing loss and he has consistently provided inaccurate and unreliable test results.  See Turk v. Peake, 21 Vet. App. 565, 570-71 (2008) (noting that the veteran is accountable for his willful failure to cooperate with the Secretary in developing his claim and such conduct "exposes a veteran to the possibility of an adverse finding of fact...").

This issue was previously remanded in December 2007 to obtain the VA audiogram results in January 2006.  The record shows that all of the Veteran's records pertaining to hearing loss were associated with the claims file in June 2008.  The Board remanded the claim again in September 2009 to obtain outstanding Social Security disability records, private treatment records and to provide the Veteran with a VA examination for hearing loss.  The claims file contains the Veteran's Social Security disability records.  A letter dated in November 2009 requested that the Veteran inform VA of any private treatment records with his claim and to fill out and return the enclosed consent form so that VA may obtain these records on his behalf.  The Veteran did not return the enclosed form or forward any private treatment records.  The claims file contains a June 2010 VA examination (with an August 2010 addendum) that addresses the questions raised in the September 2009 Board remand.  The Board remanded the claim for a third time in September 2011 to obtain an adequate VA examination and opinion.  A July 2012 VA examination report reveals that the examiner reviewed the record and provided an opinion with a supporting explanation.  Finally, the Board remanded the claim in December 2012 to obtain all of the Veteran's VA treatment records from March 2010 to the present to include a March 2010 VA audiologist test and another VA opinion that addresses the documented complaints of hearing loss during service.  The claims file contains recent VA treatment records to include the March 2010 VA audiologist test.  A January 2013 opinion addresses the issues raised in the December 2012 Board remand and the examiner supported her opinions with an explanation.  Accordingly, the Board finds that there has been substantial compliance with the December 2007, September 2009, September 2011 and December 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Furthermore, the record presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration.  Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. 

II.  Analysis

The Veteran asserts that his current bilateral hearing loss had its onset during active military service.  

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For purposes of applying VA laws, impaired hearing is considered 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 speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that threshold levels above 20 decibels indicate at least some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 155 (1993) citing MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988).  

In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations.  As noted above, hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385.  A July 2004 VA treatment record reveals that the Veteran had moderate to moderately severe mixed hearing loss in the right ear and normal to moderate high frequency sensorineural hearing loss in the left ear.  The actual audiogram results were not reported.  VA examinations conducted in October 2006, March 2007, June 2010 and July 2012 revealed that the Veteran provided inconsistent and unreliable results.  Therefore, the examiners did not document the results of the hearing evaluations.  A March 2010 VA treatment record reveals that the Veteran had a history of malingering on two different occasions.  The audiologist determined that the test results during the March 2010 evaluation appeared to be reliable in the left ear; however, not in the right ear.  The March 2010 VA treatment record shows an auditory threshold of 40 decibels (dB) at 4000 Hertz (Hz) in the left ear.  The audiologist determined that the evaluation revealed normal to mild high frequency hearing loss between 250 and 4000 Hz.  Based on the foregoing, the evidence of record reveals that the Veteran has a current left ear hearing loss disability under VA regulations.  Although the medical evidence of record indicates that the Veteran has moderate to moderately severe mixed hearing loss in the right ear, there is no evidence of record that shows the Veteran's right ear hearing loss meets the requirements for a hearing loss disability under VA regulations as there is no documentation of accurate puretone thresholds and speech recognition tests for the right ear documented in the VA treatment records were greater than 94 percent.  

The Veteran's service treatment records reveal that the Veteran complained of a burning sensation in his chest, sore throat and an earache in the left ear with decreased hearing for one month in February 1981.  He was diagnosed with peptic ulcer disease and questionable hearing loss.  The Veteran sought treatment a week later in February 1981 for decreased hearing in the left ear, sinus trouble and chest congestion.  He was diagnosed with sinusitis and serous otitis media.  An October 1981 VA treatment record shows that the Veteran complained of occasional dizziness and decreased hearing in the left ear.  A January 1982 VA treatment record documents that the Veteran reported decreased hearing for more than a year.  Accordingly, there is evidence that the Veteran experienced decreased hearing in the left ear during active military service.  There is no evidence of complaints or treatment for right ear hearing loss during active military service.  

With respect to whether the Veteran experienced acoustic trauma during active military service, the Board observes that the Veteran's service personnel record indicates that his military occupational specialty (MOS) during service was a stock control specialist.  In a case where a veteran is seeking service connection for any disability, due consideration must be given to the places, types, and circumstances of the veteran's service.  38 U.S.C.A. § 1154(a).  The Board finds it is not likely that the Veteran in the course of his duties as a stock control specialist would have been exposed to acoustic trauma.  Furthermore, the Veteran indicated in the July 2012 VA examination that as a supply clerk he was not routinely exposed to noise.  He also explained that he was exposed to weaponry with the use of hearing protection during training exercises only.  Therefore, it appears that any loud noise exposure was minimal based on the conditions of the Veteran's active military service and his lay statements.  

The Board notes that the Veteran has asserted that his bilateral hearing loss began during military service and that his right ear hearing loss progressed since military service.  The Veteran is competent to present evidence of difficulty hearing and the onset of such problems.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service).  

Sensorineural hearing loss is recognized as a chronic disease under section 3.309(a) as an organic disease of the nervous system.  However, the Veteran's service treatment records do not document a diagnosis of sensorineural hearing loss of the right or left ear during active military service.  The Veteran's current right ear hearing loss is mixed.  With respect to the documentation of decreased hearing in the left ear, the VA examiner in January 2013 noted that hearing loss related to acute serous otitis would be conductive or mixed in nature.  The Board notes that conductive or mixed hearing loss is not recognized as a chronic disease under section 3.309(a).  The Federal Circuit held in Walker that section 3.303(b) only applies to a chronic disease as listed under section 3.309(a) that was shown in service.  Walker v. Shinseki, 708 F.3d 1331, 1335-36 (Fed. Cir. Feb. 21, 2013).  Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to his bilateral hearing loss.  

In this case, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current hearing loss disability and his active military service.  In this regard, the record contains a negative VA medical opinion dated in January 2013.  The VA examiner noted that the Veteran reported an earache with decreased hearing in the left ear at multiple medical visits in 1981.  The Veteran was referred to a hearing evaluation, but there was none located within the service treatment records.  The examiner observed that the Veteran served as a supply clerk.  The Veteran's exposure to noise was limited (training only) and he reported that he used ear protection.  The examiner determined that it is less likely than not that the Veteran's left ear hearing loss existed within one year from discharge of service or is etiologically related to service.  She explained that the Veteran may have had a temporary left ear hearing loss related to the acute serous otitis diagnosed in February 1981.  However, he did not continue to report hearing loss beyond 1981.  Furthermore, any hearing loss related to acute serous otitis would be conductive or mixed in nature.  The Veteran's left ear thresholds obtained in 2004 indicated a sensorineural hearing loss at 4000 Hz.  With respect to the right ear, the examiner determined that it is less likely than not that the Veteran's right ear hearing loss existed during service, within one year of service or is etiologically related to service.  She explained that the Veteran was a supply clerk during service and he reported limited noise exposure with hearing protection in service.  Furthermore, VA treatment records indicate that the Veteran has mixed hearing in the right ear, which is not typical of a noise induced hearing loss.  She also noted that the Veteran did not report any right ear hearing loss in service.  The Board concludes that this opinion is probative and persuasive as the examiner reviewed the Veteran's claims file including his service treatment records and provided a clear rationale based on the evidence of record and medical expertise.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed).  

The Veteran contends that his hearing loss is related to military service.  The Board notes that, although under certain circumstances lay evidence can serve to support a claim for service connection, lay assertions regarding medical matters have no probative value when a lay person is not competent to offer such medical opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board finds that in this case, an opinion on whether the Veteran's current hearing loss is related to active military service requires special medical knowledge.  The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current hearing loss disability and a disease or event during military service.  

As the probative evidence of record does not establish a relationship between the Veteran's current hearing loss and his period of active military service, the Board finds that the preponderance of the evidence weighs against the claim and service connection for bilateral hearing loss is not warranted.  In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  


ORDER

Entitlement to service connection for bilateral hearing loss is denied. 



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs