Citation Nr: 1325759 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-00 803 ) 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: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to November 1975. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida, which denied the claim. The Board has previously considered this claim. In September 2012, the Board remanded the claim to the RO for additional evidentiary development, specifically, to attempt to obtain additional information from the Veteran about a December 2009 private audiometry report and get updated VA treatment records. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran does not have a current bilateral hearing loss disability according to VA regulations. CONCLUSION OF LAW A bilateral hearing loss disability was neither incurred in, nor aggravated by, active duty service, and a sensorineural hearing loss did not manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, a January 2009 pre-adjudication letter informed the Veteran of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess/Hartman by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, and a VA examination report dated April 2010. Additionally, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the VA examination report reveals that the VA examiner reviewed the pertinent evidence of record, elicited from the Veteran a history of his hearing loss symptomatology and treatment, performed a comprehensive audiological evaluation, and provided the results of the analysis. For these reasons, the Board concludes that the examination report is adequate upon which to base a decision in this case. To the extent that the Veteran argues that the April 2010 VA examination is inadequate, it is noted that the examination was conducted in complete accordance with 38 C.F.R. § 4.85 and there is no evidence to suggest that it was performed improperly. The examiner accurately indicated the Veteran's military occupational specialty as well as his account of in-service noise exposure to weaponry among other things. Moreover, all procedures to obtain records pertaining to the Veteran's claim have been correctly followed. As noted above, in September 2012, the Board remanded the claim in order to attempt to obtain additional information concerning his December 2009 private audiometry report. In a February 2013 letter, VA requested that the Veteran provide more specific information regarding the name and address of the provider who performed the aforementioned audiometry report. Thereafter, in a March 2013 reply, although the Veteran provided a release to allow VA to obtain treatment records from the provider, in February 2013, he advised the RO that the audiologist had retired and that he was unable to obtain the requested information. See deferred rating, February 2013. In addition, although the Board requested and obtained the Veteran's medical treatment records from the Social Security Administration ("SSA"), a review of these records reveals no information concerning the Veteran's claimed hearing loss. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been has been consistent with the provisions of the VCAA. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirements has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. See Overton v. Nicholson, 20 Vet. App. 427 (2006). Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Additionally, service connection for certain diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that the disease 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) (2012). 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 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 existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends that he has a current bilateral hearing loss that has been chronic ever since active duty service as a result of acoustic trauma. See Veteran's statement, January 2009. In this regard, the Board notes that the Veteran's service personnel records show that his military occupational specialty ("MOS") was that of a field wireman during his active service. These records also demonstrate that, during his active service, he was attached to the Ninth Infantry Division upon enlistment, and the Third Infantry Division Artillery during his foreign service in Germany. Thus, the Veteran's service records support his claim of in-service noise exposure. However, a review of his service treatment records reveals that the Veteran neither complained of, was diagnosed with, nor received treatment for a hearing loss disorder during service. During his November 1972 service enlistment examination, his audiological puretone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 10 5 5 5 5 The criteria for hearing loss as described under 38 C.F.R. § 3.385 were not met for either the right or left ear, as the auditory threshold neither reached a level of 40 decibels or greater for any of the frequencies, nor reached a level of 26 decibels or greater for any three frequencies. In addition, no abnormal findings of the ears or eardrums were noted at that time, and on the accompanying medical history report, the Veteran reported no history of hearing loss problems. During his October 1975 service separation examination, the Veteran's audiological puretone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 5 0 LEFT 10 10 10 5 5 Again, the criteria for hearing loss under 38 C.F.R. § 3.385 were not met for either the right or left ear, and the Veteran's ears and eardrums were noted as normal. Post-service VA Medical Center ("VAMC") treatment reports reveal that during an October 2006 outpatient evaluation for "chronic medical problems," the Veteran specifically denied having any hearing loss, ear pain or discharge. On examination, his ear canals were clear and his eardrums were intact. There is no probative evidence that the Veteran either sought treatment for, or was diagnosed with a hearing loss disorder until December 2009, when he underwent audiometric testing from an unidentified private provider, which revealed audiological puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 50 -- 60 LEFT 60 65 60 -- 70 Speech recognition ability was 92 percent at 85 decibels for the right ear, and 96 percent at 95 decibels for the left ear. However, there is no indication whether the examiner utilized the Maryland CNC test to obtain speech recognition scores, and there is no accompanying diagnosis or analysis of the results. Moreover, as noted above, although the RO attempted to obtain additional information about this evaluation from the provider, the Veteran reported that the provider is now retired. In April 2010, the Veteran was afforded a VA audiometry examination, at which time, his main complaint was difficulty hearing and tinnitus. He reported that his active duty service involved noise exposure from mortars, gun ranges, tank fire, and working with high-frequency radios. He also denied post-service noise exposure, stating that he was currently employed as a hair stylist. The examiner noted that his review of the December 2009 private audiometry test showed mild to moderate hearing loss in the Veteran's right ear and moderate to moderately severe hearing loss in the left ear. The Veteran's audiological puretone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 25 25 LEFT 15 20 25 25 25 Speech recognition ability using the Maryland CNC test was 96 percent for the right ear and 96 percent for the left ear. The examiner noted that type A tympanograms were obtained bilaterally, which indicated normal middle ear function for both ears. Based on these results, the criteria for a hearing loss disability as described under 38 C.F.R. § 3.385 were not met for either ear. Subsequent VAMC treatment records show that in July 2010, the Veteran requested an audiology consultation for complaints of tinnitus only. In June 2011, after having earwax removed from his ears, the Veteran was afforded a VAMC outpatient audiology evaluation, at which time, he complained of "gradual hearing loss" and significant tinnitus bilaterally. He also reported that he wore a hearing aid in his right ear, but said he had left it at home. A visual examination of the auditory canal and eardrums revealed normal findings bilaterally. The audiologist noted that, although she attempted to obtain the Veteran's puretone thresholds, the Veteran "was giving a lot of false positive responses." In this regard, she noted that his hearing thresholds were "at the limit of the equipment." The diagnosis was subjective tinnitus, constant bilateral; the Veteran was asked to return to the clinic for auditory brainstem response ("ABR") (noted as a method of auditory threshold estimation) or otoacoustic emission ("OAE") testing. In August 2011, the Veteran returned to the VAMC for an ABR. The clinician noted that the results suggested normal neural conduction time through the lower levels of the brainstem bilaterally; the ABR was deemed to be within normal limits. In January 2012, the Veteran returned to the VAMC auditory clinic for a reevaluation "due to malingering." The clinician also noted that he was seen due to inconsistent responses and a normal ABR. The clinician noted that since the ABR was normal, but no threshold ABR or OAE was done, it was decided that an OAE was an appropriate next step for the Veteran. During the evaluation, distortion product otoacoustic emissions testing was present from 750 Hz to 6000 Hz bilaterally, which the examiner said was consistent with normal outer hair cell function and consistent with the VA examination audiogram done in April 2010. He added that hearing results were normal through 4000 Hz, and a mild loss was noted at 6000 Hz and 8000 Hz bilaterally. The Veteran was advised that a test that required no cooperation from him was necessary in order to obtain accurate results. There are no additional audiology treatment records in the claims folder or in the Virtual VA electronic claims folder. In March 2013, the claims folder was returned to a VA audiologist by a Decision Review Officer after the RO noted that the Veteran indicated that he was unable to provide the requested information concerning his private audiologist. The examiner, however, only interviewed the Veteran via telephone and concluded that his tinnitus (which had already been service-connected in an earlier RO decision) was a result of acoustic trauma. As noted above, however, the Board concludes that there was substantial compliance with its September 2012 remand directives. The RO contacted the Veteran in order to attempt to secure additional information about the clinician who performed his December 2009 private audiometry examination, but the Veteran indicated that the clinician had retired and said that he was unable to provide the requested information. III. Conclusion The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Based on a review of the complete evidence of record, the Board concludes that the competent and most probative evidence of record is against the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. As previously noted, in order to establish direct service connection, there must be competent medical evidence of a current disability, a disease or injury in service, and competent medical evidence linking the claimed in-service disease or injury to the current disability. In this case, although the Veteran submitted private audiometry evaluation results from an unknown provider to purportedly show the existence of a current hearing loss disability, the results contained therein were neither interpreted, there was no indication whether the Maryland CNC test was utilized, nor was there any diagnosis or discussion of the Veteran's claimed hearing loss disorder. In fact, it appears that a portion of the evaluation results were not submitted. Significantly, there was no statement from the clinician linking a current bilateral hearing loss to the Veteran's active duty service. Conversely, the April 2010 VA examination was performed by a competent VA audiologist, utilizing the Maryland CNC test. The examination results showed that the Veteran does not meet the definition of a hearing loss disability under 38 C.F.R. § 3.385. In addition to the VA examination results, the Board has also considered the Veteran's VAMC outpatient audiometry clinic results, which have consistently shown that the Veteran gave "a lot of false positive responses" during audiometric testing, demonstrated findings within normal limits on the ABR, and was found by the clinician to be a malingerer. In this regard, the Board has considered the holding of the Federal Circuit in Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), in which it held that the Board may not find that a claimant's report of in-service symptoms lacks credibility solely because there was no objective medical evidence corroborating those symptoms at the time. However, the Board believes the instant case is clearly distinguishable, as the Board is not relying solely upon a general absence of hearing loss complaints during service or physical findings within normal limits at separation. Rather, it is relying not only on the examination findings of a competent VA examiner, but also on the findings of a competent VA audiologist, who found the Veteran's audiometric responses to be exaggerated, with puretone hearing thresholds at the limit of the testing equipment. Additionally, even assuming, as the Veteran's representative argues, that the Veteran's inservice audiometric studies did not provide valid audiological information, the fact remains that the Veteran does not have a current bilateral hearing loss disability for VA purposes following the administration of a standard examination for the purposes of assessing hearing impairment. 38 C.F.R. § 4.85. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, in light of the lack of information from the private clinician who performed the December 2009 audiometry, as well as the opinions from the VA clinicians, who essentially found that the Veteran's audiometric test results were not reliable, the Board does not find the Veteran's statements concerning any current hearing loss, other than those documented by records obtained through official channels, as well as his statements regarding any continuous hearing loss symptomatology since service, to be credible. As noted above, during an October 2006 VAMC outpatient evaluation, the Veteran denied having any hearing loss problems. As the Court has noted, the Secretary is not required to consider the patently incredible to be credible. See King v. Brown, 5 Vet. App 19, 21 (1993) (the Board must not assume the credibility of evidence when the evidentiary assertion is inherently incredible). Accordingly, the Board concludes that the probative evidence of record does not support the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability on a direct basis. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) does not apply in this case, as there is not an approximate balance of probative evidence. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Moreover, service connection on a presumptive basis is not warranted, as there is no probative evidence that the Veteran had a hearing loss to a compensable degree within one year of separation from service. Rather, the first evidence of claimed hearing loss problems (not disability) was not until 2009, nearly 35 years after active duty service. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the amount of time that passed following service without any documented complaint or diagnosis of a hearing loss is evidence that weighs against the Veteran's claim. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs