Citation Nr: 1325723 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 08-36 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In January 2012, the Board denied service connection for right ear hearing loss and tinnitus, and remanded the issue of entitlement to service connection for left ear hearing loss for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Left ear hearing loss clearly and unmistakably pre-existed service. 2. Any increase in severity was clearly and unmistakably due to the natural progress of the disease. CONCLUSION OF LAW Left ear hearing loss preexisted service and was not aggravated thereby. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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. Pelegrini v. Principi (Pelegrini), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a July and October 2006 letters, issued prior to the adjudication of the claim, and a subsequently issued January 2012 letter, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran. He was notified of all elements of Dingess, including the disability-rating and effective-date elements of the claim, by July 2006 and October 2006 letters. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. There was a timing deficiency in that the January 2012 letter was sent after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in a supplemental statement of the case issued in February 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA treatment records, and private treatment records. In addition, the Veteran was afforded a VA audiology examination in February 2012 for his left ear hearing loss disability. The Board remanded the claim in January 2012 so that a VA examination and opinion could be obtained. The requested examination was conducted in February 2012, and an opinion was provided in conjunction with that examination. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998) In sum, the Board concludes that any errors in the notice and the development of the claims by the originating agency were not prejudicial to the Veteran. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki. Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. A Veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id at (b)(1); 38 U.S.C.A. §§ 1111, 1137. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). If the disorder becomes worse during service and then improves due to in- service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App 238, 245 (1994). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is one for service connection rather than compensation based on aggravation. Wagner. 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 the 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 (2010); 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. Analysis A review of the Veteran's entrance examination report, dated in February 1965, shows that it contains audiometric findings that revealed pure tone thresholds, in decibels, as follows: Hertz (Hz): 500 1000 2000 3000 4000 Average Right (db): N/A N/A N/A N/A N/A Left (db): N/A 15 20 30 35 This report is dated prior to July 1966. Service department audiometric readings prior to October 31, 1967, must be converted from ASA units to ISO units. In particular, this means adding 5 decibels at 4000 hertz. In this case, when the threshold of "35" at 4,000 hertz is converted to ISO unit, it results in a value of "40." This is sufficient to meet the criteria for preexisting left ear hearing loss under 38 C.F.R. § 3.385. Given the foregoing, left ear hearing loss was "noted" upon entrance to service. Crowe v. Brown. Thus, the Veteran is not presumed to have been in sound condition at the time of his enlistment in June 1965. As a result, it is the Veteran's burden to establish that his claimed left ear hearing loss underwent a permanent increase in severity in service beyond the normal progression of the disability in order for service connection to be granted. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. As noted above, service treatment records show that audiometric testing at the time of the Veteran's entrance examination in February 1965 revealed a 40 decibel loss at 4,000 hertz in the left ear. The remainder of the service treatment records are negative for complaints, findings or a diagnosis related to hearing loss. Furthermore, at the time of his separation examination in February 1967, his hearing was within normal limits bilaterally, and in an associated "report of medical history," the Veteran denied a history of hearing loss. The post-service medical evidence consists of VA and non-VA treatment records and reports, dated between 2005 and 2009. This evidence includes a May 205 report from P.L.M., M.D., which notes that the Veteran had been treated for "worsening hearing loss bilaterally since discharge from the Military Service." This physician states, "His discharge Audio was obviously 'dry lab'!! No one's hearing improved 1,000x after military service." Hearing amplification was recommended. An associated audiometric examination report, dated in May 2008, contains only charted results, however, the Board will assume it establishes left ear hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385, and additional development is therefore not required. See Savage v. Shinseki, 24 Vet. App. 259 (2010). Similarly, a January 2007 audiometric report from Hometown Hearing contains only charted results, and the Board will assume it establishes left ear hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. A VA examination report, dated in May 2007, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported current difficulties hearing, with unprotected exposure to hazardous noise during service, as well as during performance of his civilian occupation as an automobile mechanic. He was diagnosed with severe to profound high frequency sensorineural hearing loss bilaterally. The examiner opined that as the Veteran's hearing was within normal limits upon separation from service, his current hearing loss did not occur while in the military, and that it is less likely than not that his hearing is service-connected. He explained that current research does not support the concept of delayed onset of hearing loss, and that therefore any increased loss of hearing after discharge is more than likely to be due to other factors such as his civilian occupational exposure. A report from R.P.N., Au.D./CCC-A, dated in October 2009, shows that the audiologist states that he evaluated the Veteran that same month. The Veteran reported noise exposure during service that included live weapons fire, heavy machinery noise, and blast noise from various types of ordinance, without protection. He denied significant recreational noise exposure and any history of trauma or otosurgery. The audiologist noted that audiometric findings revealed that the Veteran had normal sloping to profound sensorineural hearing loss in both ears, and opined that it was at least as likely as not that his hearing loss was caused by (or made worse by) his exposure to hazardous noise while serving in the U.S. Army. During his most recent VA examination in February 2012, the Veteran was diagnosed with sensorineural left ear hearing loss in the frequency range of 500-4000 hertz. The examiner opined that it was not likely that the Veteran's pre-existing left ear hearing loss was aggravated beyond its normal progression by his military service. His rationale was that the Veteran's hearing was well within normal limits at the time of his separation physical, and that those thresholds were actually better than the recorded thresholds at the time of his entrance physical. There is no competent medical or lay evidence of record indicating that the Veteran's pre-existing left ear hearing loss was aggravated by service. There is also no medical opinion of record indicating that the Veteran's left ear hearing loss was aggravated during service. In this regard, the Board has considered the opinion of R.P.N. However, there is no indication that his opinion was based on a review of the Veteran's claims file, or any other detailed and reliable medical history, and his opinion is not well-rationalized, as it does give any support for the conclusion that the Veteran's hearing loss was "made worse" during his military service, especially in light of the fact that his hearing was normal at the time of his discharge. Furthermore, the doctor failed to discuss the Veteran's onset of symptoms, or post-service occupational noise exposure. Accordingly, the opinion lacks probative value. The only probative medical opinion of record indicates that the left ear hearing loss pre-existed service and was not aggravated therein. The Veteran has expressed his belief that his pre-existing left ear hearing loss was aggravated in service. The Veteran is competent to report the symptoms of his left ear hearing loss; however, as a layperson; he does not have the expertise to opine that the disability was aggravated in service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2012). Given the preexisting disease and lack of in-service aggravation, entitlement to service connection for left ear hearing loss is not warranted. Consequently, the benefit of the doubt doctrine is not for application, and the claim for entitlement to service connection for left ear hearing loss must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for left ear hearing loss is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs