Citation Nr: 1327366 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-11 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for right ear hearing loss. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service in the Navy from July 1989 to August 1996 and from March 2003 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) that, in part, denied service connection for bilateral hearing loss. In June 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. In August 2012, the Board denied service connection for left ear hearing loss, and remanded the claim for service connection for right ear hearing loss for further development, to include obtaining information from the Veteran regarding treatment for right ear hearing loss since service, procuring any such treatment records, and scheduling him for a VA audiological examination with an etiological opinion. In a letter dated in October 2012, the Veteran was asked to provide information regarding treatment, and in November 2012 he underwent a VA examination. While it appears that there was substantial compliance with the remand directives of August 2012, the Board found that records cited in the 2012 VA examination were not of record and that the VA examiner in 2012 had rendered an inadequate opinion. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, in April 2013, the Board again remanded this matter in order to procure any pertinent medical records not already in the claims file (to include the July 2012 VA audiogram cited by the November 2012 VA audiologist) and to provide the Veteran a VA audiological examination to determine the nature, extent, and etiology of any right ear hearing loss. The record reflects that the July 2012 VA audiogram was associated with the claims folder. Further, as more fully explained below, in reviewing the May 2013 VA DBQ (disability benefits questionnaire) examination, there was, to the extent possible, substantial compliance with the remand directives of April 2013. Stegall v. West, supra. The Board also notes that VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's Virtual (electronic) VA folder in October 2012 and in June 2013. The records uploaded in October 2012 were noted in the January 2013 supplemental statement of the case (SSOC), and, although the June 2013 SSOC did not include a specific reference to the records uploaded in June 2013, a review of these records shows that they are basically duplicative of other records that were previously associated with the claims folder. Finally, the Board notes that the Veteran submitted a letter in July 2013, which is basically duplicative of his prior contentions. Therefore, the Board need not remand these matters to the agency of original jurisdiction (AOJ) for initial consideration. 38 C.F.R. § 20.1304(c). FINDING OF FACT Although the Veteran's exposure to excessive noise in service has been conceded, the competent and probative evidence of record preponderates against a finding that the Veteran has right ear hearing loss for VA disability purposes. CONCLUSION OF LAW Right ear hearing loss was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or SSOC. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). However, the United States Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2008 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that, in the April 2008 letter, the Veteran was advised of how disability ratings and effective dates are assigned. Dingess, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Sanders, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available service and post-service treatment records for the Veteran. Further, the Veteran underwent VA examinations in 2009, 2012, and 2013. In this regard, the Board acknowledges that the VA examinations in 2009 and 2012 were previously found to be inadequate. Further, in the April 2013 remand, the Board provided specific terms for the requested VA audiological examination and opinion. In reviewing the May 2013 VA DBQ examination, however, the Board finds that, although the VA examiner did not provide rationale in complete compliance with the terms as set out by the Board in the prior remand, the finding that the Veteran did not (currently and at any point during the appeal period) have a right ear hearing loss disability for VA purposes, rendered moot the necessity to provide specific rationale for the opinion provided. Thus, the May 2013 VA examination report is deemed adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. Such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Service personnel records reveal that the Veteran's military occupational specialty (MOS) was medical corpsman. Service treatment records (STRs) from the Veteran's first period of active service include a November 1988 entry examination. Audiometric examination revealed pure tone thresholds of 20, 0, 0, 0, 0, and 25 decibels in the right ear at 500, 1000, 2000, 3000, 4000 and 6000 Hertz (Hz). In July 1989, an in-service reference audiogram was conducted prior to the Veteran's initial duty in hazardous noise areas. In January 1992 audiometric testing revealed pure tone thresholds were 30, 30, 20, 20, 25 and 30 decibels in the right ear at 500, 1000, 2000, 3000, 4000 and 6000 Hz. An in-service hearing conservation data sheet dated in January 1993, showed pure tone thresholds in the right ear of 20, 15, 5, 15, 25 and 20 decibels at 500, 1000, 2000, 3000, 4000 and 6000 Hz respectively. The examiner noted the Veteran had significant threshold shifts, and, as a result, he was required to have a 15-hour "noise-free" follow-up test. The follow-up audiogram taken the next day showed pure tone thresholds in the right ear of 30, 30, 20, 20, 25 and 30 decibels at 500, 1000, 2000, 3000, 4000 and 6000 Hz. The examiner again noted significant threshold shifts in the right ear of 20 decibels or greater, and, as a result, the Veteran was required to have a 40-hour "noise-free" follow-up test. In March 1993, a follow-up audiogram revealed pure tone thresholds in the right ear of 35, 30, 35, 10, 35 and 30 decibels at 500, 1000, 2000, 3000, 4000 and 6000 Hz. STRs also include an entry dated in March 1996, which shows that the Veteran was treated for an episode of right otitis media. In July 1996, an audiometric examination revealed pure tone thresholds of 10, 10, 0, 0, 15, and10 decibels in the right ear at the 500, 1000, 2000, 3000, 4000, and 6000 Hz. Private medical records, dated subsequent to the first period of active service, include a June 2001 annual examination for the Naval Reserves, in which an audiometric examination of the Veteran's hearing acuity revealed pure tone thresholds in the right ear of 20, 20, 15, 10, 20, and 20 decibels at 500, 1000, 2000, 3000, 4000, and 6000 Hz. Also of record are treatment reports from Forrest General Hospital which show that the Veteran was admitted to an emergency room in mid-June 2001 with complaints of bilateral ear pain and upper respiratory congestion. The diagnosis was bilateral otitis media. The examiner noted that the Veteran's hearing test the prior day was markedly different than his baseline hearing test done one year ago and believed that these findings were secondary to his current infection. When seen on June 29, 2001, the Veteran complained of bilateral earaches with decreased hearing. The impression was bilateral chronic serous otitis, and, because this had been a chronic recurring problem, a PE tube insertion was recommended. STRs from the Veteran's second period of service show that, in April 2003, he reported that he had a tube insertion in his ears in February 2002. An audiometric examination revealed pure tone thresholds of 20, 10, 10, 0, 15, and 20 decibels in the right ear at the 500, 1000, 2000, 3000, 4000 and 6000 Hz levels. Clinical evaluation of the ears was normal. On VA examination in June 2009, the Veteran reported decreased hearing for the past eight or nine years. He reported a history of military noise exposure from working on the flight deck, the flight line, and from grenades. He denied noise exposure before or after his military service. An audiometric examination revealed pure tone thresholds in the right ear of 20, 25, 20, 20, and 30 decibels at 500, 1000, 2000, 3000, and 4000 Hz. Speech recognition ability was 94 percent in the right ear. The examiner concluded that the Veteran exhibited mild right ear sensorineural hearing loss at 4000 Hz. In July 2012, the Veteran underwent a VA audiology consultation, at which time it was noted he had normal hearing sensitivity in both ears. Audiometric examination revealed pure tone thresholds in the right ear of 5, 10, 5, 5, and 15 decibels at 500, 1000, 2000, 3000, and 4000 Hz. The audiometric test results were considered to be of good reliability/validity. Word recognition scores were 96 percent for both ears with words presented at normal conversational speech level. On a VA examination in November 2012, audiometric findings revealed pure tone thresholds in the right ear of CNT (could not test) at 500, 1000, 2000, 3,000, and 4000, respectively. Speech eudiometry revealed speech recognition ability of CNT in the right ear. The audiologist reported that the test results were not valid for rating purposes, and explained that the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, and inconsistent speech discrimination scores that made combined use of pure tone average and speech discrimination scores inappropriate. The invalid results notwithstanding, the audiologist concluded that the Veteran's hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of military noise exposure. The audiologist referred to prior audiograms dated in November 1988, July 1996, June 2003, and July 2012, all of which revealed bilateral normal hearing sensitivity, and concluded that, while valid responses could not be obtained for the right ear during the current examination, it was likely that the Veteran's hearing had not decreased since the previous audiogram in July 2012. On a VA DBQ examination in May 2013, audiometric examination revealed pure tone thresholds in the right ear of 15, 15, 10, 15, and 25 decibels at 500, 1000, 2,000, 3,000, and 4,000 Hz. The speech discrimination score for the right ear was 94 percent. The diagnosis was sensorineural hearing loss in the frequency range of 6000 Hertz or higher. The double asterisks next to the diagnosis were noted to indicate that the Veteran may have impaired hearing but does not meet the criteria to be considered a disability for VA purposes, and that there was no hearing loss in the 500 to 4000 Hertz range, but there was hearing loss above 4000 Hertz. 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. For rationale, the examiner noted that the Veteran's military dates were 1989 to 1996, and that audiograms dated in November 1988, July 1996, June 2003, and July 2012 all revealed bilateral normal hearing sensitivity. The examiner further noted that hearing loss was only present on that date of the examination at 6000 Hertz, and that a hearing loss at 6000 Hertz was not considered for VA service connection purposes. The examiner indicated that the Veteran's hearing was normal at discharge in 1996, 7 years later in 2003, and also in 2012. The examiner opined that the Veteran's current hearing loss at 6000 Hertz in the right ear was not secondary to his military noise exposures as his hearing was normal on several different examinations several years following separation from service. III. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that sensorineural hearing loss is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a) and may be subject to service connection based on continuity of symptomatology. Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, residuals of a head injury in service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). 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, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Where a veteran served 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 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated 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 if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) . IV. Discussion The Veteran contends he should be entitled to service connection for right ear hearing loss, claiming that he was exposed to high noise levels while on active duty in the Navy. He maintains that as a corpsman he had to cover the Marines on the grenade range as well as other locations where they were subject to loud noises. He also claims that he was corpsman on a flight deck and that the process of unloading patients that were being medevaced placed him in a noisy environment, and that the flight decks on an aircraft carrier were some of the noisiest places a person could work. Previously, the Board has found that his account of his in-service noise exposure is credible and consistent with the circumstances of his service, and conceded that the Veteran was exposed to excessive noise in service. In this regard, service connection was granted for tinnitus, essentially based on the Veteran's exposure to excessive noise in service. The record further reflects that, despite the Veteran's contentions and post-service audiograms, there has been no competent medical evidence showing that he has current right ear hearing loss disability, as prescribed by VA standards. 38 C.F.R. § 3.385. The reported pure tone thresholds and Maryland CNC Test findings, made on the VA examinations in 2009, 2012, and 2013, simply do not meet the requirements of 38 C.F.R. § 3.385. As noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating that, in the absence of proof of current disability, there can be no valid claim since service connection presupposes a current diagnosis of the condition claimed). Full consideration has been given to the Veteran's assertions that he has hearing loss related to service as well as his report of continuity of hearing loss symptoms since service. He has most recently requested that VA look at the "non-clinical findings" in deciding his claim, including his reports that his hearing loss effects his everyday life style, that he has the television volume and telephone receiver volume maxed out, and that he has problems engaging in even simple conversation. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the presence of a hearing loss disability, pursuant to §3.385, is based on objective findings and falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Hearing loss as it relates to meeting the requirements of 38 C.F.R. § 3.385 is not the type of condition that is readily amenable to mere lay diagnosis, as the evidence shows that audiometric and word recognition testing is needed to properly assess and diagnose the disorder. Thus, the Veteran is not competent to make this determination since it is based on the results of audiometric testing of his hearing acuity at the specified frequencies mentioned of 500, 1000, 2000, 3000, and 4000 Hz, or, on objective rather than subjective data. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) That is, although the Board readily acknowledges that Veteran is competent to report diminished auditory acuity, there is no indication that he is competent to conduct or opine as to audiometric and word recognition testing, which is needed to properly assess and diagnose the disorder of hearing loss disability or VA purposes. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or perform the necessary clinical testing. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, the Veteran's lay reports of hearing loss during and since service does not constitute competent medical evidence and therefore lacks probative value. While the Board does not dispute the Veteran's contention that his hearing has deteriorated over time, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Without a current diagnosis of right ear hearing loss pursuant to 38 C.F.R. § 3.385, the Veteran lacks the evidence necessary to substantiate his claim for service connection. Simply stated, the weight of the evidence does not show that the Veteran has had a current right ear hearing loss disability, pursuant to §3.385, at any point since March 2008 when he filed his claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). As the Veteran does not have right ear hearing loss disability, as defined by regulation, service connection is not warranted. The preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for right ear hearing loss is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs