Citation Nr: 1326271 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-09 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for the claim currently on appeal. In January 2013, subsequent to the March 2011 Statement of the Case (SOC), the Board received additional evidence in the form of a statement from the Veteran and a February 2012 private audiogram. VA regulations clearly provide that any pertinent evidence must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the Veteran. See 38 C.F.R. § 20.1304(c) (2012). The additional evidence was unaccompanied by a waiver of initial RO consideration. However, the Board finds that the evidence is cumulative of evidence previously of record. Therefore, the Veteran is not prejudiced by the Board's consideration of the appeal at this time. The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. 2. The Veteran was exposed to acoustic trauma during military service. 3. The clinical onset of the Veteran's bilateral hearing loss was not within his period of active service or within one year of his separation from service. 4. The weight of the competent evidence is not in relative equipoise on the question of whether the Veteran's bilateral sensorineural hearing loss is related to service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active military service, nor may bilateral sensorineural hearing loss be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties under the Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify VA satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, 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 v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. 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 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). In the instant case, notice was provided to the Veteran in May 2009, prior to the initial adjudication of his claim in November 2009. 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) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate his claim, and was told that he needed to provide the names of the person, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. 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. B. Duty to Assist VA also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records (STRs) and private treatment records with the claims file. The Board notes that a February 2009 private treatment record indicates that the Veteran was treated by that same provider in the 1990's, but no such records have been associated with the claims file. However, there is no indication that this treatment was for hearing loss. In fact, the Veteran, on his VA 21-4142 authorization form for this physician, identified treatment for hearing loss only for a February 2009 treatment visit. He did not identify any other treatment for hearing loss from that physician and he has not filled out any other authorization forms indicating other treatment for hearing loss. Significantly, the Veteran has not identified any relevant treatment records aside from those that are already of record. 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 to obtain a medical opinion when required. In October 2009, VA provided the Veteran with an audiological examination. The examination and opinion are adequate as the examination report shows that the examiner reviewed the claims file, considered the relevant history of the Veteran's hearing loss, examined the Veteran, provided a sufficiently detailed description of the disability, and provided analysis to support his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 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 the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Merits of the Claim The Veteran contends that his exposure to loud noise as an air policeman during active service caused his bilateral hearing loss. For this reason, he asserts that he is entitled to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 or aggravated during service-the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Because sensorineural hearing loss is treated as "other organic diseases of the nervous system" under 38 C.F.R. § 3.309(a), this theory of entitlement potentially applies to the Veteran's case. Service connection may also be granted on a direct basis for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Moreover, service connection for sensorineural hearing loss will rebuttably be presumed if it manifests to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a); see also M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."). In this case, the Board finds that, while the Veteran has successfully met the first and second Shedden requirements, he has not established the third and final element necessary to support his claim for service connection. For that reason, his claim must be denied. First, the record reflects that the Veteran's bilateral hearing loss rises to the level of a current disability under the applicable provisions of VA law. Those provisions direct that 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. Here, the criteria set forth in 38 C.F.R. § 3.385 were met during an October 2009 VA examination in which the examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Accordingly, the Board finds that the threshold element for service connection (current disability) has been established. See Shedden, 381 F.3d at 1167. The Board also finds that the second service connection element (in-service injury) has been met in this case. The Veteran has described significant noise exposure in service. Specifically, he contends that he worked within 15 feet of "engines going full blast." May 2009 VA Form 21-4138. He also claims that during his tour in Vietnam, he "came under mortar attacks several times with very loud explosion all around." Id. The Veteran is competent to report such a history of acoustic trauma, which lies within the realm of his experience. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, the Board considers the Veteran's report of noise exposure to be credible as it is both internally consistent and in line with the other evidence of record. Specifically, the Veteran's DD 214 confirms that his military occupational specialty (MOS) was air policeman. VA Fast Letter 10-35 (September 2010) lists various MOSs and the probability of hazardous noise exposure. Although the Veteran's specific job title of air policeman is not listed, security forces are listed with a "moderate" probable exposure to hazardous noise during service. Thus, it is conceded that the Veteran had noise exposure during service. Having determined the presence of in-service noise exposure, the critical question remaining before the Board is whether that noise exposure caused the Veteran's current bilateral hearing loss. The Veteran may satisfy the relationship or "nexus" requirement on either a direct or presumptive basis. Neither basis is availing in this case, for the reasons explained below. The relevant medical evidence includes the STRs, 2009 treatment records from a private provider, and an October 2009 VA examination. The STRs are void of any complaints, symptoms, diagnoses, or treatment attributed to hearing problems. An August 1962 enlistment examination includes results from an audiogram. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Pure tone thresholds (converted) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 x 10 LEFT 30 25 20 x 20 A clinical evaluation of the ears was normal. At a July 1966 separation examination, audiometric findings revealed pure tone thresholds (converted), as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 15 15 LEFT 10 0 0 10 15 A clinical evaluation of the ears was normal. The first evidence of a post-service hearing impairment comes from private treatment records dated in February 2009. The Veteran reported that he had significant noise exposure during service. The diagnosis was moderate to profound bilateral sensorineural hearing loss. However, the clinician did not provide an opinion as to the etiology of the Veteran's hearing loss. Audiological testing during an October 2009 VA audiological examination revealed bilateral sensorineural hearing loss pursuant to 38 C.F.R. § 3.385. The VA examiner diagnosed moderate hearing loss in the low frequencies, severe hearing loss in the mid frequencies, and profound hearing loss in the high frequencies. He acknowledged the Veteran's report of military noise exposure and reviewed the claims file. He deHeopined that the Veteran's hearing loss was "less likely as not" related to military service because there was no indication of hearing loss in the Veteran's STRs and because there was no change in hearing levels between the enlistment and separation examinations. The examiner based his opinion on a review of the claims file, the Veteran's subjective history, and a physical examination, and offered a rationale for his conclusions. Accordingly, the Board accords great probative weight to such opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes that it is unclear whether the VA examiner converted the audiological data from the ASA standard to the ISO-ANSI standard. However, even using the standard most beneficial to the Veteran's claim, when comparing the audiometric data generated as a result of the 1962 examination to the 1966 findings, the Veteran's pure tone thresholds improved or remained the same for four out of the five tested frequency levels except for one upon separation. The Board acknowledges the Veteran's assertions that his current bilateral hearing loss is related to service. The Veteran is competent to report hearing difficulty. See Washington, 19 Vet. App. at 368 (holding that a lay person is competent to testify as to factual matters of which he has first-hand knowledge through observation or experience). In some cases, lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, when there is a delayed onset of symptoms, other potential causes of sensorineural hearing loss must be considered. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran did not report hearing loss symptoms until over 20 years after separation from service. The facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. See Kahana, 24 Vet. App. at 438. Thus, the Veteran's testimony is not competent to the extent it is offered to establish etiology or nexus. Consequently, medical evidence is required to address the nexus question presented in this case. As the negative VA opinion on the question of nexus carries the most probative weight, the preponderance of the evidence weighs against a finding that the Veteran's bilateral sensorineural hearing loss is related to the acoustic trauma sustained in service. As such, service connection for bilateral hearing loss is not warranted on a direct theory of entitlement. The Veteran is also not entitled to service connection for bilateral sensorineural hearing loss on a presumptive basis. As mentioned above, the Veteran's STRs are silent as to any onset of sensorineural hearing loss during service. However, such silence is not necessarily fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may still be established through probative evidence that the current disability is service-related. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). However, as noted above, no such evidence has been presented. In addition, nothing in the claims file suggests that the Veteran's hearing loss manifested within the presumptive period. The Veteran's separation examination revealed normal hearing. In fact, as noted above, many of the Veteran's pure tone thresholds showed improvement at separation. The October 2009 VA examiner's opinion and the Veteran's own statements in his May 2009 VA Form 21-4138 suggest that hearing loss manifested 20 or more years after service. The Veteran's bilateral sensorineural hearing loss did not manifest within the year after his separation from service. Notably, he does not assert continuous difficulty hearing since separation. Thus, he is not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomology. The Board remains sympathetic to the Veteran and does not question the sincerity of his belief that service connection is warranted for his bilateral hearing loss. Nevertheless, for the reasons detailed above, the preponderance of the competent and credible evidence weighs against the Veteran's assertion of a positive nexus between his currently diagnosed disability and his active service. As such, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application and that service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs