Citation Nr: 1327220 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 13-07 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1961 to March 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The evidence of record shows that the Veteran's bilateral hearing loss did not have onset during active service, was not caused by his active service, and did not manifest within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101(3), 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, VA fulfilled its duty to notify by sending the Veteran a letter dated August 2010, before the RO adjudicated the claim, that notified him of the above requirements. In any event, the Veteran has not alleged prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). The duty to assist requires VA to help claimants develop their claims: (1) by obtaining evidence such as treatment records and other relevant evidence; and (2) by providing a medical examination if warranted based on the factors set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, VA obtained the Veteran's service treatment records (STRs) and service personnel records and provided the Veteran two audiological examinations to substantiate his claim. A private audiological evaluation is also of record. The Veteran does not identify and the record does not indicate any evidence not already of record that is necessary to fairly adjudicate the claim. Therefore, the Board finds that the claim is fully developed and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim The Veteran seeks service connection for bilateral hearing loss, which he states was caused by the loud noise to which he was exposed in the service while assigned to a tank unit. For the reasons stated below, Veteran's claim for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, "[t]o establish a right to compensation for a present disability, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for some organic diseases of the nervous system, including sensorineural hearing loss, may also be granted if those diseases manifest to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). To establish service connection for hearing loss, a claimant must also meet the requirements of 38 C.F.R. § 3.385, under which impaired hearing is considered a disability if: (1) any of the auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or greater; (2) the thresholds for at least three of these frequencies are 26 decibels or greater; or (3) the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). In deciding a claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). In this case, the evidence establishes that the Veteran currently has bilateral sensorineural hearing loss and that his hearing loss is considered a disability under 38 C.F.R. § 3.385. Moreover, VA has conceded that the Veteran suffered acoustic trauma and was exposed to hazardous noises in service as a rocket gunner, auto-rifleman, and tank loader. However, as to whether there is a causal relationship or "nexus" between the bilateral hearing loss and the in-service acoustic trauma, the Board finds that there is not. The STRs reflect that audiometric measurements of the Veteran's hearing were not taken at the time he entered the service. However, the STRs do include audiometric measurements as part of the Veteran's separation examination that reveal that the his hearing was normal bilaterally when he left the service. Moreover, there are no complaints of any hearing loss in the STRs, and the Veteran endorsed that he had never had "ear, nose, or throat trouble" on his report of medical history at the time he separated. Shortly after the Veteran filed his claim of entitlement to service connection for hearing loss, he submitted the results of a private audiological examination, dated in August 2010, showing a current diagnosis of bilateral hearing loss. The report of the examination, however, does not include an opinion as to the etiology of his hearing loss. VA subsequently provided the Veteran an audiological examination to substantiate his claim in December 2010. The VA audiologist who examined the Veteran opined that his hearing loss was not caused by military noise exposure. He gave the following rationale: "separation audiogram on 1-13-64 used pure tones from 250-8000Hz revealing normal hearing bilaterally with no complaints of tinnitus. (ANSI conversions were applied)." Not satisfied with the etiological opinion of the first examination, VA ordered a second examination, which was conducted by a different audiologist per the Veteran's request in February 2013. The second audiologist found the hearing loss not at least as likely as not related to military service. He provided the following rationale: Even though pure tone specific results were not obtained at the time of entrance in the military, the veteran's pure tone audiometric results obtained at the time of [discharge] from service indicated normal hearing across test frequencies per VA standards. In addition, the pattern of hearing loss currently being displayed is not consistent with hearing loss resulting only from exposure to high noise levels, but may be more consistent with presbycusis or other factors. The Boards finds the second audiologist's examination and opinion to be adequate. Its report reveals that the audiologist considered all of the pertinent evidence of record, to include the Veteran's service treatment records, service personnel records, and previous audiological examinations. 38 C.F.R. § 3.159(c) (4). Moreover, the opinion is supported by an analysis. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one"). In deciding the Veteran's claim, the Board has considered all the evidence of record and finds the opinion of the second audiological examination to be the most probative evidence on whether there is a causal relationship or "nexus" between the Veteran's hearing loss and his in-service acoustic trauma. The Board finds no "nexus" based on the audiologist's determinations that the Veteran's hearing was normal at the time he separated from the service and that that his hearing loss is not consistent with hearing loss resulting only from exposure to high noise levels, but may be more consistent with presbycusis or other factors. Moreover, the audiologist's opinion is consistent with the Veteran's STRs, which do not show that the Veteran ever received treatment for, or complained of, any hearing problems. Further, there is no evidence that the Veteran's hearing loss manifested within one year after he separated from the service, and the earliest audiogram of record diagnosing hearing loss is dated in September 2010, forty six years after the Veteran's separation. As to the Veteran's contention that the his hearing loss was caused by the loud noise he was exposed while assigned to a tank unit, the Board finds that that the Veteran is not competent to make that determination because that is a matter requiring audiological expertise and the evidence does not show that the Veteran has any such expertise. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Whether a layperson is competent to provide a nexus opinion depends on the complexity of the case). In sum, the preponderance of the evidence is against a finding that the Veteran's currently-diagnosed disorder had its onset in service, manifested within one year following separation, or is etiologically-related to service. The Board recognizes that the RO granted the Veteran service connection for tinnitus based on the opinion of the second audiologist who, as to the tinnitus stated: Even though audiometric results obtained at the time of [discharge] from the military were within normal limits per VA standards, it is not possible to determine if any threshold shifts may have occurred due to lack of entrance pure tone thresholds. It is felt that the veteran's conceded exposure to acoustic trauma in the military should be considered as a contributing factor in the development of tinnitus. The Board, however, finds that VA, in granting the Veteran's service connection for tinnitus, afforded the Veteran every reasonable doubt based on an opinion that is highly speculative as to the etiology of tinnitus. Further, the Board acknowledges the Veteran's statement that the first VA audiologist was biased against him and did not provide an objective diagnosis. Specifically, the Veteran states that the first audiologist showed his "personal distaste" for veterans when he told him, during the examination, that it "pisses him off" that veterans apply for benefits due to hearing loss and tinnitus. The Veteran believes that the audiologist's personal views tainted the examination. The Board, however, affords the nexus opinion of the first audiologist very little weight and, as stated above, the Board, instead, relies on the opinion of the second audiologist to support its finding that the Veteran's hearing loss is not related to service. For all the reasons stated above, the Board concludes that the criteria for service connection for bilateral hearing loss have not been met. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs