Citation Nr: 1326699	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  08-38 077	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had active duty service from July 1983 to October 1987, May 1993 to September 1993, and from November 2001 to August 2003.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The Board remanded this issue to the RO/Appeals Management Center (AMC) in January 2012.  The Board is obligated by law to ensure that the RO/AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).  The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review.

The Board notes that the issue of entitlement to service connection for tinnitus was previously denied by the Board in January 2012.  As such, this issue is no longer on appeal and will not be address in this decision.

The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal.


FINDING OF FACT

Bilateral hearing loss related to the Veteran's active service is not demonstrated.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.     38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103(A) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000

With respect to the Veteran's claims decided herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 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; and (3) that the claimant is expected to provide. 

Prior to initial adjudication of the Veteran's claim, in April 2008, the Veteran submitted a signed statement acknowledging that the VA notified him of the evidence or information needed to substantiate his claims.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  This notice letter indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining the evidence.  The April 2008 notice letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the claims file.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded a VA examination in November 2005, June 2008, and January 2012 and the results of which have been included in the claims file for review.  This VA examination involved review of the claims file and thorough examinations of the Veteran.  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim.

Additionally, as stated above, the Board finds there has been substantial compliance with its January 2012 remand directives.  The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  As stated above, the Veteran was afforded an additional VA examination.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II. Merits of the Claim

The Veteran is seeking service connection for bilateral hearing loss.  He essentially contends that he developed this disability as a result of noise exposure during his military service.

Governing Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may also be granted for chronic disabilities, such as sensorineural hearing loss, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  In such instances, service connection for sensorineural hearing loss may be established based on a continuity of symptomatology from the time of manifestation.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as sensorineural hearing loss).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

For the 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, 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 (2012).

The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 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.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay 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.  Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 her 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 claims.  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 appellant).

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 appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



Factual Background and Analysis

According to the Veteran's in-service treatment records, there is no indication of complaints, treatment, or diagnosis of bilateral hearing loss.  All audiograms within the in-service treatment records did not meet the criteria for hearing loss and no hearing loss disability was recorded.

The Veteran has consistently claimed that he was exposed to loud noise during his military service.  In his December 2008 substantive appeal, the Veteran stated that his duties were on the U.S. Air Force ranges starting in 1983 and was not provided with hearing protection.  He stated that while performing his duties during Operation Noble Eagle from 2001 to 2003, a constant strain was put on his hearing.  The Veteran further stated he did not have any loud noise exposure post-service.

The Veteran's DD 214 indicates the Veteran's military occupational specialty was a security forces supervisor.  In addition, he was recognized with a Small Arms Expert Marksmanship Ribbon with device and served in support of Operation Noble Eagle/Enduring Freedom.  

In a March 2008 letter, Dr. D. A. O'Keeffe, a private medical doctor, stated that the Veteran had documented hearing loss and based on his military service and as he "continues to instruct in weapons training and continues to work at the firing range[] [h]e has been exposed to varying degrees of loud noise resulting in acoustic trauma."  Therefore, Dr. O'Keeffe opined that the Veteran hearing was related at least partially to the acoustic trauma he has experienced while performing his duties in service. 

A VA examination was conducted in November 2005 to determine if the Veteran currently had hearing loss for VA purposes which was etiologically linked to the Veteran's active duty service.  The Veteran stated military noise exposure was part of his main job as an instructor on the firing range.  The Veteran stated he had daily noise exposure while working in the kitchen of a prison for 17 years without hearing protection.  He stated he attended 20 concerts and did woodworking in the past without hearing loss.  He also hunts without hearing protection.

On examination, the pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
10
4
LEFT
0
0
-5
5
5

Speech audiometry revealed speech recognition ability of 98 percent in the right and left ear.  The examiner noted the Veteran had normal hearing.

In a June 2008 VA examination, the Veteran expressed difficulty understanding speech in the past year and a half.  He stated he was issued and wore hearing protection over the years but felt that the ear protectors he was issued when he first entered service were inadequate.   The stated that since 2002 he had failed his annual hearing test and that the standards have been routinely lowered so that he was able to keep his position.  

On examination, the pure tone thresholds, in decibels, were as follows:




HERTZ



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

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.  The examiner found that the Veteran's hearing was within normal limits bilaterally and therefore opined that it was less likely than not that the hearing loss was due to noise exposure the Veteran experienced during active duty.  

Significantly, in September 2008, the Veteran submitted the results of audiological evaluations which appeared to document significantly decreased audiological acuity in August 2008 and especially in September 2008.  

In August 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
20
40
LEFT
20
35
5
35
35

In September 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
55
60
65
70
LEFT
40
65
55
60
70

The Board stated in the January 2012 remand that it was not apparent upon what basis such a large discrepancy in audiometric readings would occur within a few months and that the new records appeared to document the presence of hearing loss for VA purposes.  As the examiner who conducted the June 2008 VA examination found no link between hearing loss and the Veteran's active duty service based on the fact that the Veteran's hearing was within normal limits in June 2008 and just two months later, audiological testing appears to demonstrate the presence of hearing loss for VA purposes, the Board found the Veteran should be afforded a new VA examination to reconcile the conflicting evidence.  

As such, in January 2012, the Veteran underwent a new VA audiological examination where the pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
15
25
20
LEFT
25
20
20
25
20

Speech audiometry revealed speech recognition ability of 96 percent in the right and left ear.  The examiner determined the Veteran had sensorineural hearing loss in the frequency range of 6000 Hz or higher but did not diagnose him with sensorineural hearing loss in the frequency range of 500-4000 Hz.

Upon examination and review of the claims file, the examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in service.  The examiner explained that the Veteran's "[h]earing is within normal limits bilaterally from 250 though 6000Hz.  Audiological test results from June, August, and September 2008 indicates bilateral hearing loss of varying degrees and are not consistent with all other audiograms performed.  It is not possible to provide an opinion regarding the discrepancy between these tests and other performed.  The results of today's examination are considered to be reliable."  The examiner also determined that the Veteran's hearing loss did not exist prior to service.

In light of the evidence of record, the Veteran's claim must be denied.  In the absence of proof of present disability there can be no successful claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In this case, the September 2012 examiner determined the Veteran did not have sensorineural hearing loss.  Accordingly, the Veteran has not shown a current disorder for which service connection can be granted.

VA must consider all favorable lay evidence of record.  38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498  (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran.  A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, lay persons may or may not be competent to opine as to medical etiology or render medical opinions.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999).  In most circumstances, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation.  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Degmetich, 104 F.3d 1328. 

The Board acknowledges Dr. O'Keeffe's positive nexus opinion.  Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187(1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).

Although Dr. O'Keeffe provided a positive nexus opinions, his conclusion does not reflect any review or discussion of the contents of the claims file, address any of the contrary evidence of record, or provide any rationale supporting the opinions.  The Board further notes that the March 2008 letter is merely a conclusory statement without factual, medical rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight).

In contrast, the January 2012 and earlier VA examination reports are the most thorough and factually supported opinions of record, given that they are consistent with other evidence of record and included review of the claims file.  This medical evidence is competent, credible and persuasive, as it is based on accurate facts and supported by a rationale.  Id.

The Board has considered the Veteran's assertions that his hearing problems are due to his military service.  In that regard, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing problems with the noise exposure and symptomatology.  His assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). 

Given the complex nature of the Veteran's bilateral hearing problem and in light of the conclusion of the January 2012 VA examination findings that the Veteran does not have a current hearing loss disability for VA compensation purposes, the Board concludes that the Veteran's statements and opinions as to diagnosis and etiology are of minimal probative weight.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Accordingly, his opinions are not probative and are outweighed by the medical evidence of record.

Taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran's claimed disability and his military service and the Board concludes that service connection for bilateral hearing loss is not warranted.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs