Citation Nr: 1326827	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-26 955	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Childers, Counsel







INTRODUCTION

The issue of service connection for tinnitus has been raised by the Veteran, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action.  

The Veteran served on active duty from January 1966 to January 1968; including service in Vietnam during the Vietnam War from January 1967 to January 1968.

This matter come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied, in pertinent part, service connection for hearing loss.  


FINDING OF FACT

A hearing loss disorder was not complained of or diagnosed during service; was not manifested to a compensable degree within one year from the date of separation from service; and the Veteran's current hearing loss disorder, first diagnosed after service beyond the one-year presumptive period for sensorineural hearing loss as a chronic disease, is unrelated to noise exposure in service.


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by service; and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 5107(b) (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.  Duties to Notify and Assist

VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The notice and timing requirements were accomplished in a letter sent April 2009.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  

All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained.  The Veteran's service treatment records and VA treatment records have been obtained.  Private medical records are also in the claims file.  In addition, the Veteran was accorded a VA examination.  The 2009 VA examination is adequate for adjudicative purposes.  The examiner reviewed the claims file, considered the Veteran's medical history, examined the Veteran, and after considering the aforementioned, provided a rationale for the opinion reached, which is consistent with the service treatment records.  Additionally, the Veteran was afforded an opportunity to give testimony before the Board; which he declined.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. 

Service Connection, Hearing Loss

In January 1968, the Veteran separated from active duty service.  In March 2009, he filed his claim for service connection for hearing loss, which he relates to his exposure to mortar and rocket attacks during his service in Vietnam.  The service department confirms that he served in Vietnam from January 1967 to January 1968.  

Hearing loss for the purpose of VA disability compensation is considered 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. 

Additionally, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such 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 C.F.R. §§ 3.307(a), 3.309(a).  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service . . . a veteran may still establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley, at 159-160.  

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a).  

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  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 Veteran.  38 U.S.C.A. § 5107(b). 

For the reasons that follow, the Board finds that the preponderance of the evidence is against the claim.  

The Veteran's DD-214 confirms that his military occupational specialty was machinist, and that he is a Vietnam War veteran, so occupational noise exposure during service is conceded.

Audiometric testing during the Veteran's August 1966 induction examination found as follows:

Hertz
500
1000
2000
3000
4000
Right ear
5
0
10
 
30
Left ear
10
15
0
 
45

Conversion of this pre-1967 ASA data to ISO (ANSI) units yields the following:

Hertz
500
1000
2000
3000
4000
Right ear
20
10
20

35
Left ear
25
25
30

50

Audiometric testing during the Veteran's January 1968 separation examination found as follows:

Hertz
500
1000
2000
3000
4000
Right ear
0
0
0
 
10
Left ear
0
0
0
 
10

There is no record of any complaints, diagnosis, or treatment for hearing loss during service; and no post-service evidence of hearing loss prior to the report of a February 2009 psychiatric evaluation, in which the psychologist noted that "marked hearing-related difficulties were apparent, as was a history of tinnitus."

In March 2009 the Veteran filed his claim for service connection for hearing loss, and in August 2009, he was accorded a VA audiology examination.  During that examination he reported that he worked as a machinist during and after service, and that he performed this work without the use of ear protection.  He also reported that he was exposed to small arms fire in Vietnam, and that he used to ride motorcycles.  The results of audiology testing were:

Hertz
500
1000
2000
3000
4000
Right ear
20
20
25
65
85
Left ear
20
20
20
65
80

The Maryland CNC Word List Recognition Scores were 98 percent for the right ear and 96 percent for the left ear.  The diagnosis was bilateral sensorineural hearing loss, which the examiner opined was not likely related to military noise exposure because the Veteran's hearing was within normal limits at all frequencies when the Veteran separated from service.

In September 2011, the Veteran underwent audiometric testing by a private hearing instrument specialist, who found mild to severe sensorineural hearing loss, bilaterally.  Recommendation was for hearing aids.  The technician did not discuss the Veteran's noise exposure history in the report or opine as to a nexus to service.  

In his October 2011 substantive appeal, the Veteran stated that he was not given a hearing test in Vietnam.  He reported that he returned to his former civilian machinist job after his separation from service, then went to college, and then worked in Quality Assurance.  He added that he "became a Quality Assurance supervisor and never continued as a machinist."  He also stated that with regard to motorcycles, he had never been on or ridden a hog or chopper.

Analysis

Although the evidence confirms that the Veteran was exposed to excessive noise during service and that he presently suffers from bilateral sensorineural hearing loss, the Board finds compelling the absence of any contemporaneously made complaints or findings of hearing loss during service or within the year after service, since this was the timeframe approximate to the Veteran's in-service noise exposure.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (providing that there is a plausible basis for a finding that a lack of contemporaneous evidence has greater probative value than a remote recollection of events).  Indeed, based on the entry and separation examinations, the Veteran's hearing actually improved during service.  In this regard the Board notes the Veteran's protestation that he was not given a hearing examination while he was in Vietnam; however, the evidence confirms that audiometric testing was indeed done in January 1968, a mere 10 days after his return from Vietnam; and the results of this examination were entirely within normal limits.

Moreover, there is no mention in the record of hearing loss until 2009, more than 40 years after service.  The Board finds this significant lapse in time after service to be highly probative evidence against the Veteran's claim.  See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence).  

There is also no competent medical evidence which suggests that the Veteran's current hearing loss is due to his in-service noise exposure.  On the contrary, according to a VA audiology examiner, while the Veteran did have loud noise exposure during service, his current hearing loss is not likely related to service since his hearing was normal at the time of his separation from service.  The Board finds this opinion, which is based on careful review of the medical evidence of record and consideration of the Veteran's subjective complaints and the results of audiology testing; and which included a detailed rationale for the examiner's opinion and is uncontroverted by any other medical evidence of record; to be highly probative evidence against the Veteran's claim.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); Owens, 7 Vet. App. 429 (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence).  The opinion is also consistent with the other objective evidence of record.

The Board notes that the Veteran now contends, contrary to his admissions during his 2009 VA examination, that he did not have exposure, post-service, to chopper, hog, or machine shop noise, but this does not negate the fact that the Veteran's hearing was normal, for VA compensation purposes, at the time of his separation from service, or that there is no record of hearing loss until more than 40 years after service.  This, again, is compelling evidence against the claim of service connection.  

In so finding, the Board recognizes that the Veteran is competent to describe events that occurred during military service, and competent to state that he has hearing loss (see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation); however, hearing loss can have many causes, and determining the existence and etiology of hearing loss requires medical testing and expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  

To the extent that the Veteran's statements are offered as a lay opinion on causation, that is, an association between his current hearing loss and service, a lay opinion is limited to inferences which are rationally based on a veteran's perception and does not require specialized knowledge; and no factual foundation has been established to show that the Veteran is qualified through knowledge, education, training, or experience to offer a medical diagnosis or opinion.  The Board therefore finds that the Veteran's opinion as to an association between this Veteran's hearing loss and service is beyond the Veteran's lay capacity and his statements are not competent medical evidence on the question of causation and are of no probative weight.  Owens, 7 Vet. App. 429.

Where, as here, the determinative question involves a nexus or causation, and a lay assertion on medical causation is not competent evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion.  38 C.F.R. § 3.159.

As stated before, the record does not contain competent evidence which suggests that the Veteran's hearing loss is related to service.  

Additionally, while the Veteran was undoubtedly exposed to loud noises as a machinist during service, there is, again, no contemporaneous record of hearing loss during service or within the year after service, so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309 is not warranted.  

In short, although the Veteran had loud noise exposure during service, he significantly did not complain of hearing loss during his separation examination or within the year after service and his hearing thresholds were within normal limits at the time of the separation examination, and the Board finds this to be highly probative evidence against the Veteran's claim of service connection.  Owens, 7 Vet. App. 429 (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence).  The absence of any lay or medical evidence of difficulty hearing until more than 40 years after service is also highly probative evidence against the Veteran's claim of service connection.  Id.  Moreover, competent medical evidence, which is uncontradicted by any other competent evidence, instructs that the Veteran's hearing loss is not related to service, and this too is highly probative evidence against the Veteran's claim.  Id.  The weight of the evidence is consequently against the Veteran's claim.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.).  As the weight of the evidence is decidedly against the Veteran's claim, service connection for bilateral hearing loss must be denied, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§3.303, 3.309.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs