Citation Nr: 1326247	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  10-08 209	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers, Inc.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1965 to September 1969.

This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2011.  A transcript of the hearing is of record.

In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 
 

FINDINGS OF FACT

1.  The Veteran was exposed to acoustic trauma in service.

2.  Symptoms of bilateral hearing loss were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. 

3.  Bilateral hearing loss was not shown for many years after service and is not causally or etiologically related to service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1112, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).

In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss.  Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  

Service connection may also be established with certain chronic diseases, including sensorineural hearing loss, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) 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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

In this decision, the Board has considered the lay and medical evidence as it pertains to the Veteran's bilateral hearing loss.  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

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 Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

The Board has reviewed all of 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 extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.    

As part of his current VA disability compensation claim, the Veteran has asserted that his bilateral hearing loss is related to service.  He has submitted several statements describing his in-service noise exposure, and testified at a Board hearing that he believed that his in-service noise exposure caused his current bilateral hearing loss.

First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability.  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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  In a March 2009 VA examination, a VA audiologist diagnosed the Veteran with hearing loss in both ears as defined by VA regulations, based on audiometric testing.  Therefore, hearing loss for VA purposes is shown.

Next, the Board notes an in-service incurrence of acoustic trauma.  Specifically, the Veteran's DD-214 shows that he served on active duty from January 1965 to September 1969 on the flight line refueling airplanes.  Moreover, in written statements and in oral testimony, he has described types of noise exposure which are consistent with his service.  38 U.S.C.A. § 1154(a).  As such, his accounts are found to be sufficiently credible to support a finding of in-service noise exposure and the second element has been met.  However, exposure to acoustic trauma alone does not mandate that service connection be granted.  Rather the noise exposure must be shown to have caused his current hearing loss disability.  

As the Veteran's current bilateral hearing loss is a chronic disability under 38 C.F.R. § 3.309(a), the Board will consider whether continuity of symptomatology has been shown.  Post-service evidence reflects no complaints of or treatment for hearing loss for more than two decades.  Specifically, at the January 2011 Board hearing, the Veteran testified that he first sought private hearing treatment in the 1990s, though records of this reported treatment had been destroyed prior to the filing of his claim.  Even assuming treatment as early as the 1990s, this comes more than two decades after his separation from service.    

Further, the Veteran first filed a claim for service connection for hearing loss in November 2008.  In March 2009, he underwent a VA examination and was diagnosed with bilateral hearing loss.  This is the first recorded diagnosis of hearing loss, coming approximately 40 years after service separation.  As such, the Board finds that the medical evidence does not reflect continuity of symptomatology.  

The Board has also considered the Veteran's lay statements regarding continuity of symptomatology.  In this case, the Board finds that the weight of the evidence demonstrates that he did not experience symptoms of bilateral hearing loss continually since service.  

First, the Veteran's service treatment records show that audiometric testing was conducted at the time of his entry into service in January 1965 and again in February 1965 and do not document any reports of hearing difficulties or problems with his ears.  Of note, prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.  

At the Veteran's enlistment physical in January 1965, the Veteran's ears were found to be normal.  In an associated report of medical history, he denied having any problems with his ears.  During the enlistment physical, audiometric testing was conducted.  The converted decibel thresholds are as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
Not reported
5
LEFT
20
10
15
20
25

A February 1965 service treatment record, when he was an air controlman candidate, also noted his ears as normal.  The converted audiometric test results from are as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
0
10
5
LEFT
10
15
10
20
10

Additionally, on a December 1965 Report of Medical History, he again denied having any problems with his ears.  A separation physical was conducted in August 1969, which found his ears to be normal.  He was noted to have 15/15 on a whisper voice test, but audiometric testing was not conducted.  As such, hearing loss for VA purposes was not diagnosed in service.  

Next, the post-service evidence does not reflect complaints for bilateral hearing loss for at least five years following active service.  In January 2011, the Veteran submitted a lay statement from his spouse claiming that she had noticed he had diminished hearing acuity around 1974.  While she is competent to offer statements about her own observations, she is not competent to diagnose hearing loss.

Further, the post-service evidence also does not reflect treatment for bilateral hearing loss for at least 15 years following active service when he underwent a private audiological evaluation.  The Board emphasizes the multi-year gaps between discharge from active duty service (1969), his wife's observations of diminished hearing (1974), and when treatment for hearing loss was initially sought (1990s) as evidence against a finding of continuity.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim).

Moreover, the Veteran has been vague and inconsistent as to his own statements as to the onset of symptoms.  On his November 2008 claim, he suggested that his hearing loss was caused by his active service, but did not specifically allege when his symptoms first began.  Additionally, at a Board hearing in January 2011, he was asked when he first noticed his hearing loss, to which he responded that he thought he always noticed his hearing was not as acute as others "as far back as [he] remember[s]" but could not say with specificity as to when.  

These vague statements in the record weigh against the Veteran's credibility as to onset of symptoms.  See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence).  Additionally, he has not specifically claimed to have first noticed the onset of diminished hearing acuity during service.  For these reasons, the Board finds that the weight of lay and medical evidence is against a finding of continuity of symptomatology between his current claim and service. 

In addition, as shown above, the diagnosis of bilateral hearing loss was not rendered for 40 years after the Veteran's discharge from service and he first sought private treatment for bilateral hearing loss at least 15 years after his separation from service.  Therefore, bilateral hearing loss was not shown within the first year of discharge and the presumptions under 38 U.S.C.A. §§ 1112, 1113, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply.  As such, the appeal is denied on a presumptive basis.

Nonetheless, as bilateral hearing loss is currently shown and the evidence reflects in-service acoustic trauma, the next question is whether there is a casual relationship between the current complaints and the in-service injury. 

To this end, in March 2009, the Veteran underwent a VA audio examination at which audiological testing confirmed a current diagnosis of bilateral hearing loss.  The examiner reviewed the claims file, including service treatment records.  The examiner noted the Veteran had in-service noise exposure and intermittent occupational noise exposure from his work as a carpenter.  He denied recreational noise exposure, family and otological pathology history, and head or ear trauma. 

The examiner opined that the Veteran's current disability was less likely than not caused by service based on the lack of complaints of diminished hearing acuity or hearing loss on the service treatment records, the normal audiometric thresholds at his January 1965 induction physical, the normal whispered voice testing at the September 1969 separation physical, and the length of time between the in-service noise exposure, separation from service, and the occurrence of hearing loss.  This evidence weighs against the claim.

In support of his claim, the Veteran submitted a private audiological evaluation conducted in June 2009.  The medical professional diagnosed him with bilateral hearing loss and opined it was more likely that his hearing loss was due to his active service, but did not provide any rational for such an opinion.  

The Board notes that the claims file contains differing opinions as to whether the Veteran's bilateral hearing loss is related to active service.  It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993).  Thus, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

However, the Board may not reject medical opinions based on its own medical judgment.  See Colvin v. Derwinski, 1 Vet. App 171 (1991).  The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993).  Here, there are legitimate reasons for according the unfavorable medical opinion greater probative weight as opposed to the favorable opinion.

The Board finds that the March 2009 VA examination was adequate for evaluation purposes and highly probative.  Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact.  Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion.  

In this case, the VA examination opinion addressed the Veteran's assertions of a relationship between his hearing loss and service, the service treatment records that showed no hearing loss or even diminished hearing acuity in service, the lack of complaints of hearing loss during service, exposure to intermittent occupational noise as a carpenter in the years following separation from service, and the absence of any hearing problems for a number of years following separation from service.  

The examiner also took into account that the whisper voice test administered to the Veteran during his September 1969 separation physical was not frequently specific, but still found it less likely than not that the Veteran's current hearing loss was caused by his active service.  Therefore, the Board finds the VA examiner's opinion to be of great probative value.

Conversely, the June 2009 private audiological evaluation opinion noted the Veteran had active service, found he currently has bilateral hearing loss, and opined that his hearing loss was more likely due to his in-service experience.  The evaluation report contains only data and conclusions.  A medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight.  An opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The medical professional did not provide any rationale as to why the Veteran's current hearing loss is connected to service.  The opinion did not take into account the Veteran's occupational noise exposure, the lack of complaints from the Veteran regarding his hearing during service, or the length of time between service and when he first complained about hearing loss.  As such, the Board accords the private audiological evaluation lesser probative weight.     

In this decision, the Board has also considered the Veteran's lay statements as they pertain to a nexus between current complaints and service.  A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  

Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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 (Fed. Cir. 2007).  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).   

As part of the current VA disability claim, in recent statements and sworn testimony, the Veteran has asserted that his hearing loss was caused by his active service.  In his November 2008 claim, he stated that refueling helicopters without hearing protection and the noise of the flight deck had caused his hearing loss.  In a March 2009 written statement, he stated that his current hearing loss was caused by exposure to acoustic trauma without ear protection.  

The Board has weighed the Veteran's statements as to a nexus and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and the March 2009 VA examination.  

Moreover, while the Board reiterates that the Veteran is competent to report symptoms as they come to him through his senses (e.g. that he appreciated diminished hearing acuity), bilateral hearing loss, as defined by VA regulations, is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis.  See Layno v. Brown, 6 Vet. App. 465(1994); Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file.  

Here, the Board attaches greater probative weight to March 2009 VA examination than to his lay statements or the June 2009 private audiological consultation.  For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of a nexus between his current claim and service.    

Finally, VA satisfied its duty to notify and assist the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). 

Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

Here, notice was provided to the Veteran in December 2008, prior to the initial adjudication of his claim in April 2009.  The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, as well as of VA and the Veteran's respective duties for obtaining evidence.  The letter also informed him of how disability ratings and effective dates are assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran.   

VA satisfied its duty to assist the Veteran in the development of his claim.  First, VA satisfied its duty to seek, and assist in the procurement of, relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  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 service treatment records, VA examination, private treatment records, Board hearing testimony, and lay statements from the Veteran and others.  

At the January 2011 Board hearing, the Veteran testified that he had a private audiological evaluation in the early 1990s, but informed the Board that these records had been disposed of prior to the filing of his claim and therefore cannot be obtained.  Thus, the Board finds attempts to obtain this evidence would be futile and is therefore not required by the duty to assist.  38 C.F.R. § 3.159(c).  

Additionally, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.  

Second, VA satisfied its duty obtain a medical opinion when required.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  The Veteran was provided with a VA audio examination (the report of which have been associated with the claims file) in March 2009.  The Board finds this VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the claim.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability.  Neither the Veteran nor his representative has questioned the adequacy of the VA examination.  Additionally, the Veteran testified at a hearing before the Board in January 2011, a transcript of which has been associated with the claims file.  

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that he will not be prejudiced as a result of the Board's adjudication of his claim.  
 

ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs