Citation Nr: 1325110 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-20 694 ) 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 ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to April 1966. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded the case in March 2011 and October 2011 for more development. Upon return of the case to the Board after these remands, the Board determined that further development, in the form of a medical expert opinion, was necessary. Such an opinion was obtained from a Veterans Health Administration (VHA) expert in September 2012. In December 2012, the Veteran submitted additional argument and evidence opposing the VHA opinion. He declined to waive initial RO consideration of this new evidence. In February 2013, the Board remanded for initial RO consideration of the evidence. The case is now again before the Board. FINDING OF FACT The evidence of record shows that the Veteran's bilateral hearing loss did not have onset during active service, was not caused by his active service, and did not manifest within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, VA fulfilled its duty to notify by sending the Veteran letters in February and March 2006, before the RO adjudicated the claim, that collectively notified him of the above requirements. In any event, the Veteran has not alleged prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). The duty to assist requires VA to help claimants develop their claims: (1) by obtaining evidence such as treatment records and other relevant evidence; and (2) by providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA obtained the Veteran's service treatment records, VA treatments records, and private treatment records to substantiate his claim. Moreover, the case was remanded once for VA to obtain additional private treatment records that are now associated with the claims file. Further, VA provided the Veteran an audiological examination in August 2006. VA also obtained expert medical opinions to determine the cause of the Veteran's hearing loss in April 2011, May 2011, November 2011, and September 2012. The Veteran does not identify and the record does not indicate any evidence not already of record that is necessary to fairly adjudicate the claim. Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim The Veteran seeks service connection for bilateral hearing loss, which he states was caused by the loud noise to which he was exposed in the service from working around jets without hearing protection. For the reasons stated below, Veteran's claim for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for some organic diseases of the nervous system, including sensorineural hearing loss, may also be granted if those diseases manifest to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). To establish service connection for hearing loss, a claimant must also meet the requirements of 38 C.F.R. § 3.385, under which impaired hearing is considered a disability if: (1) any of the auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or greater; (2) the thresholds for at least three of these frequencies are 26 decibels or greater; or (3) the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). In deciding a claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). In this case, the evidence establishes that the Veteran currently has bilateral hearing loss as defined in 38 C.F.R. § 3.385. Moreover, the Board has conceded that the Veteran suffered acoustic trauma in the service. However, as to whether there is a causal relationship or "nexus" between the bilateral hearing loss and the in-service acoustic trauma, the Board finds that there is not. There are numerous items of medical evidence regarding the Veteran's hearing loss. These include audiograms from February 1971 to February 1993 that were administered during the Veteran's civilian employment. As noted above, the record also includes several VA audiological opinions, with which, for various reasons, the Board was not fully satisfied. The Board notes that the details of these various medical records and opinions have been recounted in the various RO decisions, Board remands, and in the VHA audiological opinion request. The Board incorporates those details by reference and finds no need to recount them in detail here. Indeed, the Board obtained a VHA audiological opinion to definitely resolve all outstanding issues pertaining to the cause of the Veteran's hearing loss. The VHA opinion includes a sufficiently detailed description of the Veteran's claimed disability, the expert provided a relevant history evidencing review of the Veteran's medical history, and the expert supported her opinion with an analysis. The Board, therefore, finds that the opinion is adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The VHA expert concluded that it was less likely than not that the Veteran's hearing loss is related to the acoustic trauma he experienced in service. In this regard, the expert explained: [The] Veteran's hearing tests from 2-19-1971 and 1-10-1977 reveal normal hearing in both ears; therefore, hearing at separation also had to be normal. Because hearing is shown to be normal in both ears at 5 years and then again at 11 years after separation from service means that hearing loss did not exist during service or occur as a result of service. Noise exposure does not always cause hearing loss, however, if it does, it is immediate, there is no delayed onset. (Institute of Medicine's study "Noise and Military Service: Implications for Haring loss and Tinnitus" 2005). Based on this study, there is no scientific basis to conclude that current hearing loss (i.e. one that occurs many years later) is causally related to military service once it has been determined that hearing was normal at separation. In this case it is taken one step further by still having normal hearing 11 years post separation. Hearing loss is first documented in 1982. Veteran was seen by an ENT ... who writes in a note dated 3-17-1982 "slight high frequency neurosensory hearing loss over last 2 years." This corresponds to the time Veteran states he worked "in civil service (federal) my job as a woodworker, 3/1980 to 6/1981, I did operate table saws and cut off saws for lumber." The VHA expert also opined that the Veteran's service-connected tinnitus did not cause or aggravate the Veteran's hearing loss because, even though "tinnitus can be caused by hearing loss ... [it] cannot be the cause" of hearing loss. The Veteran disagrees with the VHA expert's determination that his hearing was normal in February 1971, stating that the there are actually two audiograms dated February 19, 1971, one showing hearing loss and the other one not showing it. As to the former audiogram, the Veteran, through his representative, states that it indicates thresholds shift in the right ear that should not be discounted in light of his presumed sound condition at induction. The Veteran also states that VA has never addressed an audiogram dated November 26, 1975 that, he states, shows that he had hearing loss in 1975. Moreover, the Veteran takes issue with the VHA expert's determination that noise exposure does not always cause hearing loss and, if it does, the hearing loss is immediate, without any delayed onset. In response, the Veteran submits a 2009 Naval Research Advisory Committee report, which states that excessive noise can cause hearing loss. The Veteran also attached a copy of a note in his service treatment records showing that he was seen for ear pain in the right ear in February 1966, shortly before his discharge. The Veteran states that he started experiencing hearing loss from the time he left the military and points to this evidence as proof that his hearing loss is related to service. As to this evidence, the Veteran also contends that the RO did not consider it because, although it was of record at the time of the re-adjudication in question, the RO did not mention or discuss it in the supplemental statement of the case. Additionally, the Veteran states that he did not injure his ears in his civilian employment because he used hearing protection when he was a woodworker in the early 1980s. The record also includes lay statements from two of the Veteran's sisters who state the Veteran's was exposed to excessive noise in the service and that the noise undoubtedly contributed to his hearing loss. In deciding the Veteran's claim, the Board has considered all the evidence of record and finds that the VHA expert's opinion to be the most probative evidence on whether there is a causal relationship or "nexus" between the Veteran's hearing loss and his in-service acoustic trauma. The Board finds no "nexus" based on the expert's determinations that hearing loss does not have a delayed onset and that the Veteran's hearing was normal five years and eleven years after service. The VHA opinion evidences that the expert reviewed the entire file in rendering her opinion, and the Board finds that her decision about which audiograms to use to support her opinion is a matter within the realm of her expertise. As to the Veteran's and his representative's statements that audiograms in February 1971 and November 1975 reveal the presence of hearing loss or show a meaningful threshold shifts in hearing, the Board finds that neither is competent to make those determinations because those are matters requiring audiological expertise and the evidence does not show that the Veteran or his representative, unlike the VHA expert, have any. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Whether a layperson is competent to provide a nexus opinion depends on the complexity of the case). For the same reason, the Board discounts Veteran's sisters' lay statements that in-service noise exposure caused his hearing loss and the Veteran's own contention that his complaint of right ear pain in February 1966 proves an in-service onset of it. Moreover, while the Veteran is competent to report that his hearing loss was noticeable at the time he left the service, Layno v. Brown, 6 Vet. App. 465, 469-70 (1994), the Board find that this statement lacks credibility in light of the expert audiological evidence of record that the Veteran's hearing was normal in 1971 and 1977. As to the February 1966 evidence, the Board finds without merit the Veteran's assertion that the RO did not consider it simply because there is no mention of the evidence in the May 2013 re-adjudication of the claim. The evidence was of record at the time of the re-adjudication and "absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's determination of the service connection must be presumed to have been reviewed by the Department of Veterans Affairs, and no further proof of such review is needed." Gonzales, 218 F.3d at 1381. The Board acknowledges the report submitted by the Veteran that jet engine noise exposure can cause hearing loss, but finds that the parts of the report to which the Veteran refers do not contradict the VHA's expert opinion or her support of it. Indeed, neither the Board nor the VHA examiner disputes that jet engine noise can cause hearing loss, or that the Veteran was exposed to such noise. The question is whether the noise exposure sustained during service is the cause of the Veteran's hearing impairment. As was discussed in detail above, the VHA examiner concluded for several reasons that the Veteran's hearing loss would not be related to such in-service noise exposure. As such, the preponderance of the evidence is against a finding that in-service noise exposure caused this Veteran's hearing loss. The Board concludes that the criteria for service connection for bilateral hearing loss have not been met. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs