Citation Nr: 1325859 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 12-02 308 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE 1. Entitlement to service connection for right hearing loss disability. 2. Entitlement to service connection for left hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the RO. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a video-conference hearing in August 2012; a transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on 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. Right ear hearing loss disability was not manifest during service or within one year of separation. Right sensorineural hearing loss disability is not attributable to service. 2. Left ear hearing loss was manifest during service. CONCLUSIONS OF LAW 1. Right ear hearing loss disability was not incurred in or aggravated by service and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Left ear hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant 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, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also 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. See Pelegrini, 18 Vet. App. at 121. In this case, in an April 2010 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for bilateral hearing loss, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Hence, the April 2010 letter, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded (most recently) a VA examination in November 2011 in connection with his claim for service connection for the claimed bilateral hearing loss. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the examination and medical opinions obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant and the medical literature, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned VLJ clarified the issue on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. Laws and Regulations 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. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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 also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, organic disease of the nervous system is a chronic disease. 38 U.S.C.A. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Veteran asserts that exposure to constant, severe altitude changes in the cabin of a non-pressurized aircraft caused his bilateral hearing loss disability. The Veteran's June 1956 enlistment examination showed whispered voice test of 15/15 in the ears bilaterally. Audiometric testing was not performed. The July 1959 separation examination showed whispered voice test of 15/15 in the ears bilaterally. On audiometric testing, the pure tone thresholds, in decibels, were as follows (note ASA to ISO conversions): HERTZ 500 1000 2000 3000 4000 6000 RIGHT 30 0 5 5 5 20 LEFT 10 0 5 15 10 50 Thus, the service treatment records show no complaints or findings of hearing loss disability. However, there was a high frequency loss on the left and some loss at the lowest frequency on the right. The Board notes, however, that the absence of in-service evidence of hearing loss disability is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The report of June 2010 VA examination reflects the Veteran's report of hearing difficulties most noticeable by his wife. The Veteran complained that for the past four to five years he has noticed more difficulty understanding the television. He denied any family history of hearing loss, any otosurgeries, recent ear infections or the use of ototoxic drugs. He denied experiencing any military noise exposure but did report that he served as a crew member on a non-pressurized control bomber that frequently made altitude changes. Following service, he worked for 34 years as a chemical operator. He denied a history of civilian recreational noise exposure. On audiometric testing, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 60 65 65 LEFT 15 20 65 75 95 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. The diagnosis was moderately severe high frequency sensorineural hearing loss for the right ear and asymmetric, severe high frequency sensorineural hearing loss for the left ear. The audiologist commented that the service treatment records were reviewed and noted that the Veteran had normal hearing bilaterally (for VA disability purposes) through all ratable frequencies upon separation from the military. The audiologist explained that there were no complaints of hearing loss in the Veteran's records and the Veteran denied any military noise exposure. Thus, the audiologist opined that the Veteran's hearing loss was not as least as likely as not related to his military service. The report of November 2011 VA examination documents the Veteran's report of bilateral hearing loss, worse in his left ear. The Veteran reported that the onset of his hearing loss was approximately 10 years ago and he reported having the most difficulty hearing in background noise or when a lot of people are talking at once like at a wedding reception or at a restaurant. He stated that he had to turn the volume up on the television and his wife complained about the loud volume. He served as a radar operator and patrol bomber. He denied direct excessive noise exposure but reported that he was exposed to noise from the flight line while boarding his plane. He also reported that he was subjected to atmospheric pressure changes and at times would have a cold/congestion and the pressure would hurt his ears. As a civilian, the Veteran worked at a factory as a chemical operator. He was exposed to machinery noise with hearing protection. He denied a history of civilian recreational noise exposure. The Veteran denied a medical history, family history or ototoxic drug history of hearing loss. On audiometric testing, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 70 70 75 LEFT 25 25 70 80 100 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 92 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. The diagnosis was normal to severe sensorineural hearing loss for the right ear and normal to profound sensorineural hearing loss for the left ear. The audiologist commented that the service treatment records were reviewed and noted that the Veteran had normal hearing bilaterally (for VA disability purposes) at separation from the military (the audiologist noted that if ASA to ISO conversions were applied, thresholds would still be within normal limits bilaterally). The audiologist explained that there were no complaints of hearing loss in the Veteran's service treatment records and the Veteran denied direct noise exposure from the military. The audiologist reported that the Veteran had "an extensive 34 year history of occupational noise exposure" and noted that the Veteran reported that the onset of his hearing loss symptoms was approximately 10 years ago. The audiologist observed that at his previous VA examination (June 2010), the Veteran reported that the hearing loss became noticeable about 4-5 years ago. Regardless, the audiologist noted that giving the benefit of the doubt to the Veteran with regard to onset time of hearing loss symptoms, it appears to be that the onset time of his hearing loss was at best around 2001, 40 years post military exposure. The audiologist reiterated that the Veteran had a 34 year history of occupational noise exposure. Thus, the audiologist opined that it was not at least as likely as not that the Veteran's hearing loss was related to military service. With regard to the Veteran's contention of hearing loss attributable to changes in altitude and pressure, the audiologist opined that it was not at least as likely as not that hearing loss was related to atmospheric changes. The audiologist explained that atmospheric changes could result in conditions such as tympanic membrane perforations or Eustachian tube dysfunction. The Veteran was never treated in the military for either of those conditions. The audiologist stated that the Veteran's hearing loss is a sensorineural hearing loss which is inconsistent with the type of hearing loss that would exist from etiologies of atmospheric changes. Given its review of the record, the Board finds that service connection for left hearing loss disability is warranted. To that end, the Board notes that the sole purpose of section 3.385 is to define the existence of hearing loss disability for VA purposes. The regulation does not require the existence of hearing loss disability during service. Furthermore, section 3.385 does not require or demand VA to ignore the results of tested frequencies outside of 500, 1000, 2000, 3000 and 4000 Hertz. Here, in regard to the left ear, it is clear that the VA examiners ignored the results at 6000 Hertz, which was 40 (50, applying ASA to ISO conversions). By any standard, a 40 (50, applying ASA to ISO conversions) reflects hearing loss, although not hearing loss disability. In addition, the in-service result at 6000 Hertz is consistent with a sensorineural loss, an organic disease of the nervous system. See 38 C.F.R. § 3.303(b). Post service evidence also establishes the existence of an organic disease of the nervous system (sensorineural loss on the left) and that it has reached the level of disability within the meaning of section 3.385. In essence, in-service chronicity is established and there is current disability. Based upon the facts, service connection for left ear hearing loss disability is warranted. However, the Board finds that service connection for the right hearing loss disability is not warranted. While the Veteran contends that his current right hearing loss disability had onset due to exposure to constant, severe altitude changes in the cabin of a non-pressurized aircraft in service, the Board points out that the more probative opinion concludes that it is less likely that there exists a relationship, or nexus, between the current right hearing loss disability and the Veteran's active service. Furthermore there are no complaints of a right hearing loss disability until many years after service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no evidence of right sensorineural hearing loss in service. Rather, there was a minimal abnormality at the lowest frequency. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. While the Board notes that the July 1959 separation examination report shows low frequency hearing loss (at 500 Hertz), no examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (right sensorineural hearing loss) entity were not noted. Additionally, there is no evidence of right sensorineural hearing loss within one year of separation from service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. The only other evidence of record supporting the Veteran's claim is his various general lay assertions. Here, the appellant is competent to report in-service exposure to constant, severe altitude changes in the cabin of a non-pressurized aircraft. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (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")). Here his lay assertions regarding right hearing loss disability are not credible. Prior to his August 2012 Board video hearing, the Veteran consistently asserted that his, in pertinent part, right hearing loss disability onset due to exposure to constant, severe altitude changes in the cabin of a non-pressurized aircraft. However, at his August 2012 Board hearing, the Veteran seems to testify that exposure to flight line noise caused his right hearing loss disability. Further, he testified that he "noticed [the hearing trouble] right away." However, the Board notes that this testimony is inconsistent with previous reports. The report of June 2010 VA examination reflects the Veteran denied experiencing any military noise exposure. The report of November 2011 VA examination documents that the Veteran denied direct excessive noise exposure (he did report that he was exposed to some noise from the flight line while boarding his plane). Further, the report of June 2010 VA examination reflects that the Veteran has noticed hearing problems for the past four to five years. The report of November 2011 VA examination documents that the Veteran reported that the onset of his, in pertinent part, right hearing loss was approximately 10 years ago. Further, the Veteran testified that he was not provided audiometric testing upon separation. However, the July 1959 separation examination reflects that the Veteran underwent audiometric testing in conjunction with his separation examination (and in the report of November 2011 VA examination, the audiologist noted that if ASA to ISO conversions were applied, thresholds would still be within normal limits bilaterally for VA hearing loss disability purposes). Thus, the Board finds that the Veteran's lay assertions regarding right hearing loss disability are not credible. Regardless, the Board finds that the more probative evidence regarding etiology tends to weigh against a finding that the current right hearing loss disability is due to exposure to constant, severe altitude changes in the cabin of a non-pressurized aircraft or acoustic trauma sustained in service. Thus, the Board finds that the lay opinion is less informed, less probative and less credible than the reasoned medical opinion. The Board finds the opinion of the VA audiologists in the June 2010 and November 2011 reports of VA examination to be most probative. The VA audiologists are medical professionals who have reviewed the claims file, considered the reported history and performed physical examination. The audiologists used their expertise in reviewing the facts of this case and determined, in pertinent part, that the current right sensorineural hearing loss disability was less likely than not due to exposure to constant, severe altitude changes in the cabin of a non-pressurized aircraft or acoustic trauma sustained in service. It is clear that the audiologists fully understood the basis for the Veteran's claim yet still determined after reviewing the facts of the case, that, in pertinent part, the current right sensorineural hearing loss disability was related to causes other than exposure to constant, severe altitude changes in the cabin of a non-pressurized aircraft or acoustic trauma sustained during the Veteran's period of service. The Veteran has not suggested that the June 2010 or November 2011 examinations were performed in an insufficient manner. For the foregoing reasons, the Board finds that the claim of entitlement to service connection for right hearing loss disability must be denied. In reaching this conclusion, 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for right hearing loss disability is denied. Entitlement to service connection for left hearing loss disability is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs