Citation Nr: 1325598 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-16 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active military service from September 1959 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2012, the Board remanded this case for additional development. It now returns for further appellate review. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. The issue of service connection for a back disability has been raised by the record. Specifically, in his VA Form 21-526 submitted in October 2009, the Veteran claimed a "back condition." The RO acknowledged this claim in a letter issued November 2009, which provided notice in compliance with the Veterans Claims Assistance Act (VCAA), noted the claim for "back disability," and provided information regarding new and material evidence to reopen that claim. The Board and Appeals Management Center (AMC) each referred this issue in September 2012 and January 2013, respectively, but it appears that no further action has been taken with respect to this claim. The matter is referred again to the agency of original jurisdiction (AOJ) for appropriate action. FINDING OF FACT A hearing loss disability was not shown during service or within one year of separation, and the preponderance of the evidence fails to link the Veteran's current bilateral hearing loss to service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1154, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. VA has satisfied its duty to notify. Specifically, a November 2009 letter sent prior to the decision on appeal advised the Veteran of the evidence and information necessary to substantiate his service connection claim and establish a disability rating and an effective date. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), service personnel records, VA treatment records, private treatment records, VA examination reports, and lay statements. Pursuant to the September 2012 remand directives, the AOJ sent a letter to the Veteran asking that he identify any healthcare providers who treated him for his bilateral hearing loss. The Veteran responded with a submission of four pages of private treatment records from the Scholl Center dated in January 2012 (one page of which was a duplication of a record submitted in April 2012). The Veteran has not identified any additional outstanding records that have not been requested or obtained. The Veteran was afforded a VA examination in November 2009 in conjunction with the claim on appeal. The Board determined that the medical opinion resulting from that examination was inadequate due to an insufficient rationale and, in the September 2012 remand, requested an addendum opinion or a new examination if the original VA examiner was unavailable. The Veteran has not alleged that the resulting opinion, dated November 2012, is legally inadequate for adjudication purposes. The Board finds that the 2012 opinion is adequate in order to evaluate the Veteran's bilateral hearing loss as it was provided by an audiologist and based on a thorough review of the claims file and physical examination. Moreover, the examiner provided clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Thus, the record now contains a sound medical opinion upon which a decision may be based. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For the reasons set forth above, the Board finds that there has been substantial compliance with the September 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran seeks service connection for bilateral hearing loss. He contends that his current bilateral hearing loss is due to excessive noise exposure during active service. Service connection for tinnitus is already in effect. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and an organic disease of the nervous system manifests to a degree of 10 percent 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; 38 C.F.R. §§ 3.307, 3.309(a). 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran had seven years and three months' military service spent as a jet mechanic and crew chief working daily on the flight lines. In this assignment, he was constantly exposed to jet engine noise and power tools. He also fired hand guns during service, and service personnel records show that use of hearing protection varied over the years. The Veteran is competent to report a history of in-service noise exposure. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, his assertions as to noise exposure are considered credible as they are consistent with his documented military occupational specialty (MOS) of aircraft mechanic. Further, both the VA examiners and RO have acknowledged military noise exposure in granting service connection for tinnitus. The Board finds that the Veteran was exposed to excessive noise in service. The Veteran has been diagnosed with current bilateral hearing loss for VA disability adjudication purposes. The record contains six audiograms. Three audiograms were conducted during service and prior to June 30, 1966, and were all essentially normal, when converted to International Standard Organization (ISO) units. They do not show compensable hearing loss under VA standards. The other three audiograms occurred more recently. Each test resulted in a diagnosis of bilateral sensorineural hearing loss (SNHL). The puretone threshold levels, in decibels, were as follows: November 2009 HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 30 40 LEFT 25 15 25 30 50 Speech discrimination testing was 96 percent in the right ear and 92 percent in the left ear. January 2012 HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 20 35 LEFT 25 20 35 45 65 Speech discrimination testing was 90 percent in the right ear and 100 percent in the left ear. November 2012 HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 20 30 LEFT 20 10 20 20 50 Speech discrimination testing was 92 percent in the right ear and 98 percent in the left ear. In summary, in November 2009, at least one of the auditory thresholds in both ears was 40 decibels or more. Thereafter, all audiograms have continued to show bilateral hearing loss by VA standards - speech discrimination less than 94 percent. Therefore, since at least November 2009, the Veteran has had bilateral hearing loss for VA purposes. As to whether the hearing loss shown after service was incurred in service, the Veteran's STRs do not reflect any reports of hearing impairment. Entrance and separation examinations show normal hearing. Due to the noise exposure inherent in his MOS, the Veteran was subject to three hearing conservation data reports, all of which showed essentially normal hearing. The September 1964 and October 1965 reports show he wore hearing protection always or frequently. In October 1965 he reported tinnitus following exposure to noise. On separation from service, "whisper test" results were normal. The Veteran has reported that he worked for American Airlines for ten years following service and was exposed to excessive noise at his job from air compressed power tools. There are conflicting reports as to whether he used hearing protection at that job. He also reported use of motorcycles, personal watercraft, recreational vehicles, power tools, and going hunting since service; however, he used hearing protection during those activities. The Veteran was afforded a VA examination in November 2009. However, as set forth in the Board's September 2012 remand, the Board finds that the resulting medical opinion was supported by inadequate rationale; thus, this opinion will not be discussed. The November 2012 VA examiner conducted a full audiological examination of the Veteran, including an interview, audiogram, and claims file review. He diagnosed bilateral SNHL but opined that it is less likely than not caused by noise exposure sustained in the military. He provided a rationale for this opinion, stating that there is no evidence of hearing loss during service, at separation, or within one year of discharge. He went on to cite a 2006 report, "Noise and Military Service - Implications for Hearing Loss and Tinnitus" Institute of Medicine, National Academy of Sciences (2006), which found "that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. ... [I]t is unlikely that such delayed effects occur." The VA examiner acknowledged the Veteran's history of military and post-service civilian noise exposure. He specifically noted that the Veteran reported a significant noise event in 1962 when he was blown off the wing of an aircraft by the compressor bleed-off door expelling gas. His tinnitus began after this event. As the Veteran's hearing was normal in audiometric testing both before (September 1959) and after (September 1964, October 1965) that event, the evidence does not suggest that hearing loss resulted from that event. This is consistent with the September 1954 report, which showed tinnitus following exposure to noise but normal hearing. The examiner also reconciled the service connection of tinnitus with his opinion, stating that tinnitus can exist "in the absence of hearing loss at the frequencies used for VA disability (500Hz-2000Hz). Although the Veteran is service-connected for tinnitus, there is no evidence to suggest that the Veteran had hearing loss at the frequencies used for VA disability at the time of separation." Based on the above, the 2012 examiner concluded it is as least as likely as not that the Veteran's hearing loss is caused by civilian, rather than military, noise exposure. The Board finds that the 2012 medical opinion is probative, as it was predicated upon a review of the record and is supported by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Stefl; Nieves-Rodriguez. A medical nexus between service and a hearing loss diagnosed after service is not necessarily precluded by the lack of audiometric data reflecting hearing loss for VA purposes on separation from service. The Veteran may establish eligibility for service connection by submitting evidence that the current hearing loss is causally related to service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, in the instant case, the Veteran has not submitted any evidence linking his hearing loss to service, aside from his own lay assertions. The Veteran contends that he has experienced a decrease in his hearing since service, and that he has experienced hearing loss since the early 1960s during service. Despite the fact that the Veteran's STRs are negative for objective evidence of a bilateral hearing loss disability as defined by VA regulations, he is competent to allege a history of hearing problems that began in service. 38 C.F.R. § 3.159(a)(2); Washington; Layno. Moreover, the mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran has consistently reported at VA examinations and in lay statements that his hearing loss has existed since service and that it resulted from military noise exposure. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Veteran's statements are not consistent with the other evidence submitted on his behalf, namely the three hearing conservation data reports in the STRs which show normal hearing. Lay evidence can be competent and sufficient evidence of a diagnosis or 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). While the Veteran is capable of reporting symptoms such as decreased hearing acuity, he has not shown that he has specialized training sufficient to render a diagnosis of bilateral hearing loss for VA purposes, as that determination requires expertise in administering an audiological examination. 38 C.F.R. § 3.385. Accordingly, his opinion as to the etiology of his bilateral hearing loss is not competent medical evidence. Jandreau. Here, the 2012 VA examiner's opinion is that the Veteran's hearing loss is less likely than not related to in-service noise exposure. The Board finds the medical evidence to be of greater probative value than the Veteran's lay contentions. The evidence fails to show that the current bilateral hearing loss is related to service. The Board also notes that if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). Sensorineural hearing loss is considered an organic disease of the nervous system for purposes of inclusion in 38 C.F.R. § 3.309(a). In this case however, the Veteran's hearing loss was not noted, or even indicated, in service. Thus, consideration of establishing service connection based on a theory of continuity of symptomatology is not required. Finally, the Board has considered whether the Veteran may be entitled to hearing loss on a presumptive basis. Where a veteran served for at least 90 days during a period of war, as the Veteran did, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent 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; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency SNHL an organic disease of the nervous system and therefore a presumptive disability. However, in this case, there is no evidence that the Veteran manifested high frequency SNHL to a degree of 10 percent within one year of December 1966, his date of separation. Therefore the Veteran is not entitled to service connection via presumption. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. The appeal is denied. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs