Citation Nr: 1326074 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-39 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which, in pertinent part, denied entitlement to service connection for bilateral hearing loss. The Veteran provided testimony during a hearing before the Board in November 2010 at the RO. A transcript is of record. 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 issue on appeal. FINDING OF FACT Bilateral hearing loss was first demonstrated long after service and is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (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) redefined 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 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) and 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in September 2009, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also 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. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the September 2009 letter. 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. § 5103A; 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. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the Veteran was provided a proper VA audiology examination in December 2009 for his service connection claim. 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 December 2009 VA examination and medical opinion obtained in this case is more than adequate, as it is 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, to include the statements of the appellant, and provided a complete rationale for the opinions 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 bilateral hearing loss issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). During the November 2010 Board hearing and prehearing conference, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the issues on appeal. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). 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 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 (West 2002); 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); 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 for certain chronic disabilities is through a demonstration of continuity of symptomatology. 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 Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) 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 1331, 1337 (Fed. Cir. 2006) ("[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 v. Brown, 6 Vet. App. 465, 469 (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"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). 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). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385 (2012), which provides that service connection for impaired hearing shall be established when hearing acuity meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater, the auditory thresholds for at least three of these 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss is related to noise exposure from print shop machines and jet engines during active service. His DD Form 214 reflects service in the United States Navy, including at a Naval Air Station. In addition, at the November 2010 Board hearing and in multiple statements, he reported that he was frequently around engine noise and experienced noised from work in a print shop, all without hearing protection. The Veteran is competent to report these in-service exposures, and his report is consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (2012); see Jandreau, 492 F.3d at 1377; see also Buchanan, 451 F.3d at 1337. Therefore, the Board finds his reports of these in-service exposures to be credible. An August 2009 private audiogram report and a December 2009 VA audiology examination included audiogram results which demonstrated hearing loss under 38 C.F.R. § 3.385, as auditory thresholds were found to be greater than 40 decibels at 1000, 2000, 3000, and 4000 Hertz bilaterally. The August 2009 report is the first finding of bilateral hearing loss of record. Therefore, two of the three elements necessary for service connection-current bilateral hearing loss disability and in-service injuries or exposures-are demonstrated. Unfortunately, however, the evidence of record does not support a finding that current hearing loss is etiologically related to the Veteran's in-service incidents or injuries. Service treatment records include the results of three audiograms conducted before and during service. A enlistment examination conducted in March 1964 revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 10 LEFT 5 0 5 10 20 An active duty examination in April 1965 revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 5 10 LEFT 0 0 5 10 15 Finally, a January 1968 separation examination revealed that, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 10 15 15 LEFT 0 5 10 15 20 Speech audiometry results were not provided for either ear during service. During the December 2009 VA examination, the examiner considered the Veteran's reported in-service noise exposures. However, the examiner noted the three service audiograms and found that there was no demonstration of a significant shift in hearing thresholds. Therefore, the examiner concluded that it was not likely that his current hearing loss was a result of military noise exposure. As noted above, the Board finds the VA examination and opinion provided in this case to be more than adequate as it was predicated upon a complete reading of the claims file and history as well as the Veteran's statements, and a complete rationale was provided. The only evidence of record supporting the finding of a nexus between current hearing loss and service are the statements of the Veteran, which were submitted in connection with his claim for benefits. He has specifically asserted that he had a sensitivity to high-pitched noises during service, which has continued ever since. However, the Veteran's separation examination revealed that he did not have a hearing loss disability upon discharge and the VA examiner found that the evidence did not demonstrate a significant shift in hearing thresholds during service. The Board also notes that the Veteran had high hearing thresholds at 6000 Hertz and above, which could explain his sensitivity to high-pitched noises. However, those frequencies are not considered when determining whether a hearing loss disability is present under 38 C.F.R. § 3.385. Finally, while he stated that his family and friends would make fun of him for not understanding their speech following service, this does not demonstrate that the Veteran had hearing loss, particularly the level of hearing loss at the relevant frequencies required under the regulations. Moreover, the record reflects a significant gap of over 40 years between discharge and his current claim, which is the first complaint of hearing loss of record. The Veteran lacks the necessary medical expertise to say that a hearing loss disability identified long after service is the result of in-service trauma as opposed to a post-service event or process. Given the lack of competent and credible evidence linking current bilateral hearing loss to service, the evidence is against a finding of a nexus between them. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs