Citation Nr: 1325258 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-00 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active military service from February 1984 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's diagnosed bilateral hearing loss disability has not been shown to be etiologically related to the Veteran's in-service acoustic trauma or to any other injury or illness incurred during active duty service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred or aggravated by service, and bilateral sensorineural defective hearing may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter mailed to the Veteran in November 2008 notified him of the information and evidence needed to substantiate his claim. This letter also notified the Veteran that a disability rating and an effective date are assigned if his disability is determined to be service-connected, and hence, was also consistent with the notice requirements provided under Dingess. Subsequently, the Veteran's claim was adjudicated for the first time in the RO's March 2009 rating decision. Thus, notice provided to the Veteran was legally sufficient and VA's duty to notify in this case has been satisfied. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. The Veteran's service treatment records, service personnel records, and identified and pertinent post service records have been associated with the claims file. Additionally, the Veteran was afforded a full VA examination in February 2009. After a review of the Veteran's complete claims file, the VA examiner supplied VA with an opinion and addendum which expressed the examiner's conclusions concerning the etiology of the Veteran's hearing loss. Ultimately, the Board finds that this examination, along with the other evidence of record, is fully adequate for the purposes of determining whether the Veteran's hearing loss is etiologically related to his active duty service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Analysis In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active military, naval or air service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disorder may also be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). If certain diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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 distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical evidence, or, in certain circumstances, lay evidence, of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). See also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In addition to the general service connection principles discussed above, service connection for hearing loss is not granted unless the claimed hearing loss is of a particular level of severity. For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, audiometric test results expressed in a February 2009 VA examination report show that the Veteran has been diagnosed with bilateral sensorineural hearing loss which meets the threshold severity under 38 C.F.R. § 3.385. Accordingly, the issue of the Veteran's entitlement to service connection for hearing loss turns upon the question of whether the Veteran's current bilateral hearing loss is etiologically related to in-service noise exposure or other injury or illness incurred during active duty service. The Veteran asserts that he is entitled to service connection for bilateral hearing loss as it is related to in-service acoustic trauma, to include exposure to aircrafts, generators, and hydraulic and fabricating equipment in his position as an aircraft mechanic as well as weapons qualification. The Board concedes that the described acoustic trauma is consistent with the Veteran's documented service as an aircraft maintenance technician. Even conceding that the Veteran was exposed to such acoustic trauma, however, the evidence in the record does not establish that the Veteran's hearing loss is related to his in-service acoustic trauma. Service treatment records in the claims file do not reflect hearing loss, per VA regulations, in either ear during the Veteran's active duty service. The Veteran's March 1991 separation examination report reflects that a clinical examination of the ears at that time was normal. Moreover, hearing loss was not subjectively reported by the Veteran in the attached report of medical history. The Veteran also submitted a lay statement from his nursing instructor, attesting to his difficulty hearing auscultated sounds that other students and instructors could hear. The Veteran was afforded a VA examination in February 2009 in which he reported his aforementioned military noise exposure. The VA examiner opined that the initial change in hearing in the left ear was caused by or a result of military noise exposure; hearing loss in the right ear was not caused by military noise exposure. The examiner stated that the claims file contained hearing test results throughout the Veteran's military service that showed hearing within normal limits for both ears, except for a mild change at 6000 Hertz in the left ear only; therefore, the record substantiated the claim of early changes in hearing in the left ear only. The VA examiner later submitted an addendum in which she stated that the change in hearing in the left ear did not meet VA standards, and the current bilateral high frequency hearing loss was present 18 years later and was not due to military noise exposure. The Veteran's representative submitted a brief in June 2013 in which he argued that comparison of the Veteran's entrance and separation examinations from service showed threshold shift in both ears with significant shift in the left ear. The representative argued that the threshold shift combined with the Veteran's military service satisfied the criteria for service connection. The representative also argues that the conflicting medical opinions, given by the same VA provider based on the same evidence, served to place the claim in relative equipoise. That is, that the equal amount of positive and negative balance should be resolved in favor of the Veteran which would conclude that the hearing loss in the left ear is related to service. At the outset, the Board notes that in-service threshold shifts in hearing combined with confirmed acoustic trauma in service does not satisfy the criteria for service connection, as argued by the Veteran's representative. Moreover, the VA examiner originally stated that the initial change in hearing in the left ear was caused by or a result of military noise exposure; the Board finds that this statement is not identical to a finding that current hearing loss was caused by service, as required for service connection. That is, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical evidence, or, in certain circumstances, lay evidence, of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza, 7 Vet. App. 498. See also Hickson, 12 Vet. App. 247, 253; see also Pond, 12 Vet App. 341, 346. As noted above, for purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Therefore, the VA examiner is correct in stating that the in-service change in hearing in the left ear did not meet VA standards. Following this conclusion, the VA examiner opined that the current bilateral hearing loss was not due to military noise exposure. The Board does not find that the initial VA opinion and subsequent addendum represent a positive and negative opinion as argued by the Veteran's representative. Instead, the VA examiner stated very different things - neither of which meets the above mentioned criteria for service connection for hearing loss. In view of the foregoing evidence, the Board finds that the Veteran is not entitled to service connection for a bilateral hearing loss disability. As discussed, audiometric findings expressed in the Veteran's separation examination reports do not indicate hearing loss per VA regulations. Moreover, the VA examiner's opinion is not rebutted by any other competent opinion in the record. Although the Board recognizes the Veteran's and his representative's assertions as to the belief that hearing loss is etiologically related to in-service acoustic trauma, the Board does not attach any probative weight to such assertions. Certainly, the Veteran is competent to offer probative evidence as to the presence, quality, onset, and duration of his hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (holding that lay evidence is competent with regard to a disease or injury with "unique and readily identifiable features" that are "capable of lay observation."); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a veteran is competent to report as to onset and symptoms of a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that a veteran is competent to report as to onset and symptoms of tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (holding that a veteran is competent to report as to the onset and symptoms of flatfoot). Nonetheless, the Board notes that a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In this case, given that the evidence appears to suggest that some time elapsed between the Veteran's service and the onset of hearing loss, the issue of the etiology of the Veteran's hearing loss appears to present a complex medical question. The record in this case does not reflect that the Veteran, nor those who submitted lay statements to include his representative, has the medical training and expertise required to be competent to provide an opinion as to such complex medical issues. As such, the Board does not attach probative weight to the assertions of etiology for his hearing loss. In the absence of evidence showing that the Veteran's hearing loss is etiologically related to his in-service acoustic trauma or to any other injury or illness incurred during service, the Veteran is not entitled to service connection for hearing loss. As the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss, that claim must be denied. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs