Citation Nr: 1324680 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-01 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran had active service from March 1965 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in September 2012. A transcript of this proceeding is associated with the claims file. In November 2012, the Board remanded the issue for additional development. FINDING OF FACT The competent and credible evidence does not demonstrate that the Veteran's hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In his September 2012 hearing, the Veteran waived any error in the content or timing of the notice provided to him; VA's duty to notify is considered satisfied. The Veteran's service treatment records, VA medical treatment records, and VA medical center records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication that the Veteran receives Social Security disability benefits. The Veteran provided a letter from his private physician dated in May 2009; he has not provided any additional information regarding treatment at any private facilities for his hearing loss. This matter was most recently before the Board in November 2012, when the case was remanded to the VA RO via the Appeals Management Center (AMC), in Washington, D.C. The purpose of the remand was to obtain a new VA audiology examination. In accordance with the remand, the Veteran was afforded VA examinations in January 2013 and March 2013. As these examinations were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and allow the Board to make a fully informed determination, the VA examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). All of the actions previously sought by the Board appear to have been completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Subsequently, a supplemental statement of the case (SSOC) was issued in April 2013, which continued the previous denial. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) Lay evidence can be competent and sufficient evidence of a diagnosis or used 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, 492 F.3d at 1376-77. For 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; when the auditory thresholds for at least three of the above frequencies 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b) . Analysis The Veteran is currently diagnosed with bilateral hearing loss. He contends that he was exposed to noise while serving near helicopters on the USS Okinawa and during his service in Vietnam, to include August 1968, when he was assigned to install wire around the perimeter of a base. See February 2008 statement from the Veteran; January 2013 VA examination. Service personnel records corroborate that the Veteran served in the Republic of Vietnam from August 1968 to February 1969. The Veteran is also the recipient of the Navy Achievement Medal with Combat "V." See DD Form 214 and service personnel records. Exposure to acoustic trauma during service is conceded. The Veteran's service treatment records, including his February 1965 induction physical examination report and March 1969 separation physical examination report are negative for complaints, treatment, or a diagnosis of hearing loss. In his November 2007 claim for service connection, the Veteran stated that his hearing loss disability began in 2007. A January 2008 VA treatment note described the Veteran's report of gradual hearing loss. The Veteran reported that he was tested about two to three years prior and had been provided with hearing aids but had not used them. Bilateral hearing loss was found and hearing aids were recommended. In a September 2008 VA examination report for an unrelated claim, the Veteran explained that after his discharge from service, he worked in a machine shop for about twelve years. The Veteran underwent a VA audiological examination in November 2008. He reported that he was exposed to helicopter noise and incoming mortar fire and rocket explosions during service. He stated that he was in maintenance at a machine shop for 10 years but that that environment was not noisy. He stated that his wife initially noticed his hearing impairment after his separation from service. He explained that he was first aware of his impaired hearing in 1980 and that he did not take a hearing test upon discharge from service. Following physical examination, the Veteran was diagnosed with severe sensorineural hearing loss bilaterally. In a May 2009 letter, Dr. D.B. a private physician, stated that although the Veteran's audiogram was not typical for noise induced hearing loss, his hearing decline did occur following his noise exposure in Vietnam and that he was certainly younger than would be expected for age related hearing loss. Dr. D.B. stated that it was therefore possible, but not conclusive, that the Veteran's noise exposure in Vietnam contributed to his bilateral hearing loss. In January 2013 the Veteran underwent a VA examination for ear conditions. The Veteran stated that an enlistment hearing test showed normal hearing and after discharge a hearing examination in March 1969 demonstrated a 10 decibel loss in a few frequencies. The Veteran stated that he worked in a machine ship for two years, though the examiner noted that he had stated that he had worked in the shop for 10 years at other times. He stated that after his employment in the factory he did not work at any noisy jobs and that he first noticed changes in his hearing in 1980. Following an examination of the Veteran and review of the claim file, the examiner concluded that it was unlikely that the Veteran's hearing loss had its onset in service or was related to any in-service event or injury. The examiner stated that according to audiologist literature review it was unknown as to whether delayed onset hearing existed and that hearing loss from noise injuries occurred immediately following exposure. The examiner cited findings of the Institute of Medicine which reported that hearing loss from noise injuries occurred immediately after exposure and that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after such noise exposure. The Veteran was afforded a VA audiology examination in March 2013. Following a review of the Veteran's claim file and examination of the Veteran, the VA examiner opined that it was less likely than not that hearing loss was caused by or the result of military noise exposure. The examiner supported his conclusion noting that, although the Veteran was exposed to loud military noise and stated that he did not have a hearing test upon separation, records included a separation examination which indicated normal thresholds bilaterally and the absence of a significant threshold shift in hearing in either ear. The examiner also supported his findings by noting that the Veteran reported that he began to notice hearing loss in 1980, over ten years after his separation from service. and the examiner noted that the Veteran initially stated that he worked for ten years in a maintenance and machine shop. The Veteran is, as a lay person, competent to testify about observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board does not find the Veteran's statements to be credible. The statements he has made pertaining to the onset of his symptomology have been inconsistent and he has provided very different histories as to the amount of time he worked in a machine shop, ranging between two and twelve years, to different examiners. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Moreover, the Veteran denied having a hearing test at the time of separation, but a copy of a separation examination report, including audiology results, is in the Veteran's file and is signed by the Veteran. As the Veteran's testimony is not credible, the issue of service connection relies on the findings of competent medical experts. While Dr. D.B. stated in May 2009 that it was possible, but not conclusive, that the Veteran's noise exposure in Vietnam contributed to his hearing loss, he noted that the Veteran's audiogram was not typical for noise induced hearing loss. The Veteran's January 2013 and March 2013 VA examiners were unequivocal in their opinions that it was less likely than not that the Veteran's hearing loss was related to service. Those opinions were based on the Veteran's history, including his inconsistent statements regarding post-service noise exposure, as well as the insignificant hearing shift at the time of discharge, the passage of time before the Veteran noticed any hearing loss, an ENT examination, and a review of several studies assessing the relationship between hearing loss and noise injuries. The preponderance of the evidence is against the claim for service connection for bilateral hearing loss; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs