Citation Nr: 1325592 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 12-11 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned during a hearing at the RO in May 2012. A transcript of the hearing has been associated with the claims file. The Board remanded the issue for further development in July 2012. That development was completed, and the case was returned to the Board for appellate review. In February 2013, the Board requested a medical opinion from a health care professional in the Veterans Health Administration (VHA) regarding the etiology of the Veteran's bilateral hearing loss. The Board determined that such an opinion was necessary to address the medical questions raised by the case. 38 C.F.R. §20.901(a), (d). The Veteran was notified in February 2013 that the Board intended to seek such an opinion. He was later furnished a copy of the medical opinion in June 2013, and he was provided 60 days for response. The Veteran responded in June 2013 that he had no further argument or evidence to submit and requested that the Board immediately proceed with the adjudication of the appeal. His representative also submitted an informal hearing presentation in June 2013. A waiver the RO jurisdiction is not required under such circumstances. See 38 C.F.R. §§ 20.903(a), 20.1304(c). The Board notes that the Veteran also submitted additional private medical evidence in April 2013. However, in February 2013, he had submitted a signed waiver of the RO's initial consideration of any additional evidence that he might furnish thereafter. Accordingly, there is no prejudice in considering such evidence. A review of the Virtual VA paperless claims processing system also reveals additional VA treatment records. Many of those records are duplicative of the evidence already considered by the RO. To the extent that there are new records, the Board notes that such evidence pertains to the fitting of the Veteran's hearing aids as opposed to the etiology of his current hearing loss, which is the crux of the case. Indeed, there is no dispute that the Veteran has a current disability. Thus, the additional evidence not previously considered is not relevant to the adjudication of the issue, which turns on the question of whether the Veteran's current disorder is related to his military service. Accordingly, the Board will proceed with a decision on the appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Bilateral hearing loss did not manifest in service or sensorineural hearing loss within one year thereafter, and the Veteran has not been shown to currently have bilateral hearing loss that is causally or etiologically related to his military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, nor may bilateral sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in August 2008 prior to the initial decision on the claim in January 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim and of the division of responsibilities in obtaining such evidence. The notice letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. Numerous attempts were also made to locate VA medical records from the Chicago VA Medical Center where the Veteran contends that he received treatment for his hearing loss from the late 1950s to early 1960s. However, a formal finding was made in March 2012 regarding the unavailability of records from the Chicago VA Medical Center from 1957. That finding detailed the extent of the search. Another formal finding was also made in September 2012. The efforts undertaken by VA were recorded, and the Veteran was notified of the finding. Thus, any further attempt to locate the records would be futile. The Veteran has not identified any other outstanding records that are available and pertinent to his claim for service connection for bilateral hearing loss. Furthermore, the Veteran was afforded a VA examination in April 2012 in connection with his claim for service connection for bilateral hearing loss. The Board found that this examination was inadequate and remanded the matter in July 2012 to obtain a clarifying medical opinion, which was completed in July 2012. After reviewing the medical opinion, the Board sought further development by seeking a VHA opinion. The Board finds that the June 2013 VHA opinion is adequate. The opinion is predicated on a full reading of the Veteran's claims file, and the VHA audiologist considered all of the pertinent evidence of record. He provided an adequate rationale for his opinion stated, relying on and citing to the records reviewed and various medical principles. Indeed, he specifically referenced various documents in the file, including the Veteran's service treatment records, lay statements, and post-service medical records. He gave complete answers with fully supported rationale and addressed medical literature. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the bilateral hearing loss issue has been met. 38 C.F.R. § 3.159(c)(4). In addition, the Veteran was provided the opportunity to testify before the Board the Board in May 2012. The undersigned Veterans Law Judge (VLJ) identified the issue on appeal, noted the elements of service connection, and asked questions regarding the onset, progression, and cause of the Veteran's current hearing loss. Therefore, the Board finds that it has complied with the duties owed during a hearing. Moreover, the Veteran and his representative have not contended otherwise. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the hearing loss claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran contends that his current hearing loss is due to noise exposure in service. In particular, the Veteran asserts that he had noise exposure while serving aboard the USS Robinson during which his duties involved loading 5-inch guns without any hearing protection. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. His service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. In fact, there is no documentation of puretone audiometry testing in the Veteran's service records. However, during an enlistment examination in June 1952 and a separation examination in June 1956, the Veteran was shown to have normal ears and drums, and a whispered voice testing revealed 15/15 hearing. Moreover, the Veteran did not seek treatment immediately following his separation, and there is no evidence of any hearing loss within one year of his military service. Rather, the Veteran testified at his May 2012 hearing that he first became aware of his hearing problem in 1959 when his wife pointed it out to him, which would have been approximately three years after his separation from service. He also stated that he first sought treatment at the VA Medical Center in Chicago from the late 1950s to early 1960s (such records are unavailable), where he was evaluated and obtained a hearing aid. The Veteran further indicated that he underwent two unsuccessful stapedectomies in the 1960s. The earliest objective hearing test of record is a November 2006 private report. Therefore, the Board finds that bilateral hearing loss did not manifest in service or within one year thereafter. The Board also notes that the Veteran has not specifically asserted continuity of symptomatology of hearing loss since service. Rather, as previously noted, the Veteran himself indicated at the May 2012 hearing that he first noticed his hearing loss in 1959, which was several years after his separation from service. The Board does note that the Veteran indicated in his claim July 2008 claim that his hearing loss began in 1953 and that he was treated in 1955. He also stated in May 2009 that he has had hearing loss since his military service. Such statements directly contradict his testimony provided under oath in May 2012. Thus, to the extent that the Veteran may have alleged continuity symptomatology, the Board finds such reported history to be not credible in light of the conflicting statements. Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has argued that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his bilateral hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding military noise exposure. See 38 C.F.R. § 3.159(a)(2). In addition, the post-service medical records show that the Veteran has current bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his acoustic trauma in service. The Veteran underwent a VA examination in April 2012 at which time the examiner diagnosed him with bilateral mixed hearing loss. She stated that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. In so doing, she reasoned that the Veteran's service treatment records were unable to document any hearing loss. She also explained that the Veteran's current hearing loss is not of the type consistent with noise exposure and noted the Veteran's report of two prior unsuccessful stapedectomies on the left ear after service. She concluded that, based on the Veteran's reported history of in-service noise exposure and post-service middle ear surgery, it is not possible to determine if the hearing loss is a result of military noise exposure without resorting to mere speculation. The Board remanded the matter to obtain a clarifying opinion from a VA audiologist. In response, another audiologist provided a similar opinion in July 2012 stating that she was unable to determine whether the Veteran's current hearing loss was a result of military noise exposure without resorting to speculation. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Thus, the Board assigns limited probative value to the April 2012 and July 2012 VA medical opinions. The Board finds that the most probative evidence of record is the June 2013 VHA opinion rendered by an audiologist. The VHA audiologist reviewed the claims file, to include the Veteran's medical history in service and thereafter (including the VA examination in 2012) as well as his account of exposure to large naval guns without hearing protection. The VHA audiologist acknowledged that the whispered voice test is highly subjective and is not sensitive to high frequency threshold changes; however, in his opinion, the Veteran would have failed the whispered voice test if he had hearing loss at that time considering the severity of his current hearing loss (in the context of using the test in modern day). He also noted that there was no mention of hearing loss and/or ear damage in the service treatment records, although he acknowledged that no audiometric testing was performed. Ultimately, the VHA audiologist concluded that the Veteran's current hearing loss is less likely than not directly related to his in-service noise exposure and provided supporting rationale for his opinion. He elaborated that hearing loss caused by noise injury is a different type than the Veteran's current hearing loss disability. In this regard, hearing loss caused by noise exposure is generally sensorineural and not mixed, and injuries to the auditory system due to extremely intense sound, or acoustic trauma, may cause physical damage, such as a ruptured eardrum. He noted that there was no mention of treatment for a ruptured eardrum in the service treatment records. The VHA audiologist further commented that the two stapedectomies, which are performed for otosclerosis, have no relationship to noise-induced hearing loss, thereby suggesting that the stapedectomies were not performed because of a service-related hearing loss disability. Moreover, the VHA audiologist addressed the medical literature provided by the Veteran in support of his claim that military audiological examinations are inadequate to assess noise-induced hearing loss - a 2005 National Academies of Science Institute of Medical (IOM) report titled Noise and Military Service: Implications for Hearing Loss and Tinnitus. The VHA audiologist responded by referencing a 2006 Institute of Medical study, which concluded that hearing loss caused by noise exposure does not progress when the noise exposure ceases. Thus, the VHA audiologist considered all of the evidence of record and determined that the current hearing loss was not related to the Veteran's military service, including his noise exposure therein. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). The Board does note that the Veteran submitted a note from a private physician, Dr. D.B. (initials used to protect privacy), in September 2012 indicating that "[the Veteran] has loss [of his] hearing after tour of duty during the Korean War in the 1950s. This after having been around the gunnery and exposed to loud noises [sic] without being provided hearing protection." However, the Board attaches limited probative value to Dr. B.D.'s opinion and greater probative value to the VHA opinion primarily because Dr. B.D.'s statement is not accompanied by adequate supporting rationale. Indeed, there was no discussion accounting for the absence of findings in service, the fact that the Veteran first noticed his hearing loss in 1959, or his stapedectomies following service. In contrast, the VHA audiologist reviewed the Veteran's medical history and previous audiological examinations of record and provided a medical opinion based on sound reasoning and facts. The Board has also considered the 2005 Institute of Medicine (IOM) report submitted by the Veteran in connection with his appeal that addressed noise-indiced hearing lossof military audiology examinations. However, this report is general and does not specifically address the Veteran's individual case. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). Moreover, as previously discussed, the VHA audiologist specifically addressed the whispered voice testing and acknowledged that that is highly subjective, yet determined that it would have detected if the Veteran hearing loss had in service given the severity of his disability. Thus, the Board finds that IOM report is of limited value. The Board has further considered the Veteran's contentions that audiometric tests were not performed during the time of entrance and separation from service. However, the evidence does include examination reports dated at the time of his entrance and separation that specifically document his ears and drums as being normal as well as whispered voice testing. As such, there is documentation that some type of evaluation was performed. In conclusion, the Board considered all of the evidence of record, to include the private medical opinions submitted in connection with the Veteran's claim and his own statements. Based on the foregoing, the Board attaches the greatest probative weight to the opinion of the June 2013 VHA audiologist who had the benefit and review of all pertinent medical records and who provided a rationale supported by the record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs