Citation Nr: 1325165 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 11-08 803A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for right ear hearing loss disability. 2. Entitlement to service connection for left ear hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1961 to November 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the case was subsequently transferred to the RO in Oakland, California. The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDINGS OF FACT 1. Hearing loss disability in the right ear was not present until more than one year following the Veteran's discharge from service and is not etiologically related to active service. 2. Hearing loss disability in the left ear originated during active service. CONCLUSIONS OF LAW 1. Right ear hearing loss disability was not incurred in or aggravated by active service, and the service incurrence or aggravation of sensorineural hearing loss disability during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.R.F. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Left ear hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.R.F. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As explained below, the Board has determined that service connection is warranted for left ear hearing loss disability. Therefore, no further development is required before the Board decides that claim. With respect to the hearing loss disability in the right ear, the record reflects that the Veteran was provided all required notice in a letter mailed in December 2008, prior to the initial adjudication of the claim. The record also reflects that service treatment records and post-service medical evidence identified by the Veteran have been obtained. In addition, the Veteran was provided an appropriate VA examination. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Veterans are presumed to be in sound medical condition at the time of entry into service except for defects actually noted when examined for entry into service. This presumption of soundness can be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137 (2012); 38 C.F.R. § 3.304 (2012); see also VAOPGCPREC 3-2003 (July 16, 2003). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests organic disease of the nervous system within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Right Ear Hearing Loss Disability The Veteran contends that service connection is warranted for right ear hearing loss disability because it originated in service and is due to in-service noise exposure. In this case, the Board finds that service connection is not warranted for right ear hearing loss disability because the evidence fails to show that the disability was present in service, that the Veteran manifested the disability to a compensable degree within one year after his discharge from service, or that the disability is related to the Veteran's active service. The Board concedes that the Veteran sustained an in-service injury in the form of acoustic trauma. The Veteran's DD-214 confirms that his occupational specialty was that of aircraft mechanic. This particular specialty has been recognized as entailing a high probability of hazardous noise exposure. See Veterans Benefits Administration Fast Letter 10-35 (September 2, 2010) (modifying the development process in claims for hearing loss and/or tinnitus). Furthermore, the Veteran is competent to report such a history of exposure to loud noise because it lies within the realm of his experience. Thus, it is conceded that the Veteran had noise exposure during service. Having determined the presence of in-service noise exposure, the critical question remaining before the Board is whether noise exposure caused or aggravated the Veteran's current right ear hearing loss disability. In this case, a relationship or "nexus" to service may be established on either a presumptive or direct basis. STRs demonstrate normal hearing upon entrance into service. Specifically, a September 1961 enlistment examination was negative for ear problems and reflects normal 15/15 (whispered voice) hearing bilaterally. An audiogram was performed depicting the pure tone thresholds on a graph. Each frequency depicted was not interpreted into decibels; however, the results appear to reflect normal pure tone averages in both ears through 4000 Hz. The Veteran underwent audiometric testing upon separation in October 1965. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 35 10 10 20 20 Left Ear 35 15 10 20 40 The first post-service evidence of hearing loss is the report of an August 1984 private audiological examination, which contains a diagnosis of bilateral hearing loss. In January 1985, the Veteran was administered hearing aids. At an April 2009 VA audiological examination, the Veteran reported exposure to flight line noise during service and stated that the onset of his hearing loss was while he was in the Air Force. The examiner acknowledged the Veteran's history of noise exposure during service. He compared the 1961 audiogram to the 1965 audiogram and noted that there was no change in hearing in the right ear. Based on this analysis, he opined that the Veteran's right ear hearing loss "is not caused by or a result of military noise exposure." In the April 2009 opinion, the VA examiner explained that the audiograms conducted during service and at separation showed normal hearing in the right ear. While normal hearing during service, in and of itself, is not a sufficient reason to find against the Veteran's claim, it is a factor to be considered in determining the etiology of a hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). Here, however, the examiner also based his negative nexus opinion on the fact that there was no change in the Veteran's right ear hearing between entrance and separation. When considering this evidence together, the examiner's opinion is entitled to great probative weight. There is no competent opinion to the contrary. The evidence of a nexus between the Veteran's active service and his current right ear hearing loss disability is limited to the Veteran's own statements. The Board acknowledges that the Veteran is competent to describe his symptomatology regarding his perceived hearing loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, there is nothing in the record that shows that he possesses the expertise required to provide a competent opinion concerning the etiology of his hearing loss. Therefore, his lay opinion concerning this matter requiring medical expertise is of no probative value. The Board has also considered the Veteran's statements to the effect that his right ear hearing loss began in service. As discussed above, the audiological evaluation conducted in connection with the Veteran's separation examination showed that his hearing in the right ear was within normal limits. There is no corroborating evidence of the existence of any hearing loss in the right ear until almost 20 years following the Veteran's discharge from service, and the Veteran's statements in support of the claim are based on his recollections of what happened and what he experienced more than 40 years earlier. The Board must conclude that the Veteran's current recollections are not as probative as the medical evidence prepared during service. Finally, the Board notes that there is no evidence indicating that the Veteran manifested sensorineural hearing loss to a compensable degree within one year after his discharge from service. Therefore, service connection is not warranted for right ear hearing loss disability on a presumptive basis. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. IV. Left Ear Hearing Loss Disability As explained below, the Board has determined that service connection is warranted for left ear hearing loss disability because the evidence demonstrates that it originated during service. Initially, the Board acknowledges that the medical history report accompanying the separation examination indicates that the Veteran had "trouble in childhood with hearing in left ear." The September 1961 enlistment examination was negative for ear problems and reflects normal 15/15 (whispered voice) hearing bilaterally. The audiogram appears to reflect normal left ear hearing through 4000 Hz. Thus, the presumption of soundness applies. The April 2009 VA examination disclosed that the Veteran has hearing loss disability in his left ear. The examiner provided an opinion against the Veteran's claim. The opinion was based in large part on the presence of normal hearing at the time of the Veteran's discharge from service. It appears that the examiner did not convert the 1965 separation audiogram from the ASA standard to the ISO-ANSI standard. However, as noted above, when converted, the audiogram demonstrates that the Veteran did indeed have left ear hearing loss disability at the time of his discharge examination. Therefore, the Board has determined that the negative VA medical opinion is of no probative value. The findings on the separation examination and the Veteran's statements concerning a continuity of symptomatology following service are sufficient to establish that chronic left ear hearing loss disability was present in service. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The evidence does not clearly and unmistakably establish that the disability existed prior to service and was not aggravated by service. Therefore, the presumption of soundness has not been rebutted, and the Veteran is entitled to service connection for left ear hearing loss disability. ORDER Service connection for right ear hearing loss disability is denied. Service connection for left ear hearing loss disability is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs