Citation Nr: 1327240 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-42 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from August 1968 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In October 2010, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has a hearing loss disability that is related to service. CONCLUSION OF LAW A hearing loss disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant'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, each piece of evidence of record. 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 claim. The appellant 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 claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim.. 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in December 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded VA examinations in February 2009 and October 2011. As noted in the September 2011 remand, the February 2009 VA opinion is inadequate. However, the Board finds that the October 2011 VA opinion is adequate. This opinion was rendered by a medical professional. The examiner obtained an accurate history. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. 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). II. Analysis The appellant asserts that his bilateral hearing loss was caused by his exposure to loud noise while on active duty. At the February 2009 VA examination, the appellant reported that he was exposed to aircraft engine noise and the sounds of mortars and gunfire while serving in Vietnam. He also noted that he was exposed to the MI6, M60, grenade launcher and 50 caliber machine guns and mines. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, such as hearing loss, as an organic disease of the nervous system, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993). 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. The appellant was evaluated in a VA audiological examination in February 2009. In the evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 45 55 70 LEFT 35 35 35 60 70 Speech audiometry revealed speech recognition ability of 90 percent in both ears. The VA examiner diagnosed the appellant with bilateral sensorineural hearing loss in both ears. Pursuant to the standard set forth in 38 C.F.R. § 3.385, the record establishes that the appellant has a current bilateral hearing loss disability for VA purposes. Therefore, the Board finds that the first element of a service connection claim, that of a current disability, has been met. In evaluating the second element of service connection, that of in-service incurrence, 38 U.S.C.A. § 1154(a) and 38 C.F.R. § 3.303(a) provide that due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. The appellant asserts that he has bilateral hearing loss as a result of his exposure to loud noise in service. His Form DD 214 indicates he served in the Air Force as a munitions maintenance specialist and was stationed in Vietnam. An August 1971 hearing conservation data record notes that the appellant had been exposed to aircraft noise for two years and did not wear ear protection. Based on this history, the Board finds the appellant was exposed to loud noise in-service. However, for service connection to be granted, competent and credible evidence must show that the appellant's current disability is at least as likely as not attributed to service. The appellant's service treatment records fail to show any complaints or findings indicative of hearing loss. The appellant underwent a hearing examination in July 1968 before induction into service. In the evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 15 LEFT 5 0 5 15 10 The evaluation indicates the appellant had normal hearing at the time of his entry into service. The appellant's service treatment records are negative for any complaint, treatment, or diagnosis of hearing loss. The appellant underwent a hearing evaluation in August 1971. In the evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 10 LEFT 20 15 15 20 20 The appellant underwent another hearing evaluations at the time of his separation from the service in March 1972. In the evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 10 10 10 10 10 LEFT 20 15 15 20 20 20 The results of the audiometric test indicate the appellant did not have hearing loss at the time of his separation from service. However, the August 1971 and March 1972 audiometric reports indicated the appellant had a "shift" in hearing in service. The first evidence of record noting any problems relating to the ears is an October 2002 private treatment record, which noted that the appellant had left benign paroxysmal positional vertigo. The February 2009 VA examination report noted that the appellant reported being exposed to aircraft engine noise and other noise in service, as discussed above. As a civilian, he worked for the railroad as a switchman, brakeman, and conductor. He did not report any recreational noise exposure. The February 2009 VA examiner found that it was less likely than not that the appellant's hearing loss was caused by or a result of noise exposure during service, since an examination at the time of his discharge indicated his hearing was within normal limits. The VA examiner stated that since the damage was done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss. As noted above, the appellant's in-service audiographic reports indicated that he had a shift in his hearing during service. As the examiner did not address this shift, the opinion is inadequate and has no probative value. An October 2010 private treatment record from W.A.K. reflects that the appellant had significant sensory hearing loss. In an October 2010 opinion, Dr. P.C.F. stated that "[b]ased on a review of his available medical records, as well as my clinical notes and examination, I consider it as likely as not that his bilateral tinnitus is the result, largely if not, entirely of his duties in the Air Force, particularly while serving in Vietnam." Service connection for tinnitus has been granted. As Dr. P.C.F. did not address whether the appellant had bilateral hearing loss as a result of exposure to noise in service, the letter is not probative to the appellant's hearing loss claim. A VA opinion was obtained in October 2011. In the opinion, the VA audiologist found that the appellant's current bilateral hearing loss is not as likely as not due to acoustic trauma during military service. The audiologist noted that the appellant had normal hearing bilaterally at enlistment, on an in-service exam, and at separation. There was a significant threshold shift of 15 dB in the left ear at 1000 Hertz between the 1968 to 1971 exam. Otherwise hearing was stable at each frequency in both ears over the course of military service. The audiologist stated that: The 15 dB shift at 1000 Hz in the left ear only is less likely as not due to acoustic trauma because the shift is not in a frequency range that is typically affected by acoustic trauma. A noise induced hearing loss or a noise induced threshold shift, typically occurs in the high frequency range at the onset of the acoustic trauma. A low to middle frequency threshold shift, such as the above-mentioned left ear shift at 1000 Hz, is more typically due to transient middle ear dysfunction. The Veteran 's current bilateral hearing loss is not as likely as not due to acoustic trauma during military service. According to the literature, one can expect a threshold change to vary from test to test by as much as 10 dB. Therefore, for a threshold shift to be considered a significant change it must change more than 10dB. The Board finds the October 2011 VA opinion to be highly probative as the VA audiologist provided a thorough rationale for the opinion and reviewed the claims file. The appellant is competent to comment on his symptoms, but not the cause. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant may also report whether his symptoms have been continuous since service. At the October 2010 Board hearing, the appellant indicated that it was accurate to say that when he came back from the service, the hearing loss that he had did not bother him or he did not pay much attention to it, but as he got older, it got worse. See October 2010 Board Hearing Transcript at p. 12. In his November 2008 claim, the Veteran also indicated that his hearing loss disability began in 1969, while he was in service. Thus, the appellant has asserted that he has had continuous symptoms of hearing loss since service. However, as a lay person, the appellant is not competent to state that he has a bilateral hearing loss disability for VA purposes since service. Thus, the Board must evaluate whether the evidence demonstrates a nexus between the current hearing loss and his exposure to loud noise in service. The appellant has expressed a belief that he has bilateral hearing loss is causally related to active service, and that such hearing loss should be service-connected. Although a lay person may be competent to report the etiology of a disability, bilateral hearing loss is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by audiological testing, the Board finds that the probative value of any such opinion is outweighed by that of the October 2011 VA audiologist, who has education, training and experience in evaluating the etiology of a hearing loss disability. The VA examiner reviewed the appellant's claims folder and opined that it was not as likely as not that the appellant's bilateral hearing loss disability was related to service. The Board finds that a preponderance of the evidence is against a grant of service connection for bilateral hearing loss. The evidence does not support a finding that there was a nexus between the appellant's current hearing loss and his exposure to loud noise in service. The appellant's separation examination indicates he did not have hearing loss when he left the service. Although the Board has considered the appellant's statements that he has had hearing loss since service, the Board finds the VA opinion and service treatment records to be more probative. The Board has also considered whether presumptive service connection for chronic disease is warranted for hearing loss. Hearing loss, as an organic disease of the nervous system, will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. In order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). The evidence of record does not establish any clinical manifestations of bilateral hearing loss within the applicable time period. Inasmuch, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. In sum, the Board finds that the evidence is sufficient to establish that the appellant was exposed to loud noise in service. Further, according to the findings of the September 2009 VA audiological examination, the appellant has a current bilateral hearing loss disability for VA purposes. However, the Board finds the evidence does not support a finding that the appellant's bilateral hearing loss as caused by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for bilateral hearing loss. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 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. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs