Citation Nr: 1327736	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  06-27 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for a right shoulder disability.

3.  Entitlement to service connection for a right elbow disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

J. Hager, Counsel
INTRODUCTION

The Veteran had active service with the United States Army from February 1966 to January 1969.

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from May 2006 and August 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In the May 2006 decision, the RO denied service connection for bilateral hearing loss disability.  In the August 2007 decision, the RO, among other things, denied service connection for right shoulder and elbow disabilities.

In October 2009, the Veteran testified during a hearing before a decision review officer (DRO) at the RO.  In June 2010, the Veteran testified during a hearing before the undersigned at the RO.  Transcripts of each hearing are of record.

In November 2010 and again in September 2012, the Board remanded the claims to the RO, via the Appeals Management Center (AMC).  For the reasons stated below, the RO/AMC complied with the Board's remand instructions with regard to the claim being decided herein.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The issues of entitlement to service connection for right shoulder and right elbow disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran was exposed to loud noise in service.

2.  Bilateral hearing loss disability did not manifest in service.

3.  Sensorineural hearing loss did not manifest within the one year presumptive period for chronic diseases.

4.  Bilateral hearing loss disability to include sensorineural hearing loss did not manifest until many years after service.

5.  Current bilateral hearing loss disability, to include sensorineural hearing loss, is unrelated to in-service noise exposure.


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by service and sensorineural hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Under the VCAA, 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.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In a January 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for bilateral hearing loss disability.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The Veteran has substantiated his status as a veteran.  The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in a June 2006 letter.

Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The timing deficiency was cured by readjudication of the claim in multiple supplemental statements of the case (SSOCs), most recently in February 2013.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the available, identified post-service private and VA treatment records.  In its November 2010 remand, the Board instructed that the RO/AMC obtain all outstanding VA treatment records, take appropriate steps to obtain medical records associated with the Veteran's employment with the Dallas fire department, requesting more specific information and releases from the Veteran if necessary, and readjudicating the claims.  In its September 2012 remand, the Board found that the RO/AMC failed to substantially comply with the Board's November 2010 remand instructions because the Veteran was not specifically requested to provide an authorization form for his Dallas fire department records.  The Board therefore instructed that the Veteran be specifically requested to provide a properly executed authorization and consent form with regard to these records covering the entirety of his period of employment.  In addition, the Board found that a new audiology examination was required, because of prior failures to comply with VA regulations regarding such examinations and the examiners did not address the fact that the audiometric measurement standards changed between the time of the Veteran's entrance and separation examinations.  The Board therefore instructed that the Veteran be afforded a new VA audiology examination at which the audiometry results at entrance and separation be discussed. 

For the reasons stated below, the January 2013 VA audiology examination scheduled pursuant to the Board's remand instructions was adequate and the RO/AMC substantially complied with this and the other September 2012 remand instructions.  The RO/AMC also complied with the Board's remand instructions by requesting outstanding VA treatment records and associating them with the record via the Virtual VA claims file.  In addition, the RO/AMC complied with the Board's remand instructions by sending the Veteran an October 2012 letter specifically referencing the Dallas Fire Department records, enclosing an authorization and consent form regarding these records, and informing the Veteran that he could also obtain these records himself.  As the Veteran did not respond to the letter, the RO/AMC was not required to take additional action pursuant to its duty to assist.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. § 3.159(c)(1)(ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-Federal records, including providing authorization for release of records).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to the claim being decided herein.  The claim for entitlement to service connection for bilateral hearing loss disability is thus ready to be considered on the merits.
Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which a veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In Walker, the Federal Circuit noted without extensive discussion that because the Veteran sought entitlement to service connection for bilateral hearing loss disability, a disease not not listed as a chronic disease in the statute or regulation, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) were inapplicable.  Id. at 1340.  The Federal Circuit recently reaffirmed this view in an unpublished decision.  See Jackson v. Principi, No. 2012-7179, 2013 WL 2461843, at *3-4 (Fed. Cir. June 10, 2013).  VA policy, however, is to consider sensorineural hearing loss as an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation.  See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system).  See also VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)").  The Board will therefore consider the Veteran's sensorineural hearing loss to be a chronic disease until the conflict between the Federal Circuit's language and VA policy is specifically addressed by the Federal Circuit.

In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service for veterans with 90 days or more of active service during a war period or after December 31, 1946.  38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(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, 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.

On the January 2013 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
30
45
40
LEFT
25
30
30
40
40

Maryland CNC speech recognition scores were 100 percent in the right ear and 92 percent in the left ear.  As there were auditory thresholds of 40 decibels or greater in at last one frequency in each ear, the Veteran has also met the current disability requirement with regard to the claim for service connection for bilateral hearing loss disability.

In addition, the Veteran claims that he was exposed to loud noise in service.  The Veteran is competent to report in-service injury and the Board finds his testimony credible and consistent with the circumstances of his service, including his military occupation specialty (MOS) as an armor crewman and training as an artillery survey specialist.  The Veteran has therefore met the in-service injury or event requirement with regard to this claim.  See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  As the Veteran has met the current disability and in-service injury or event requirement with regard to the claim, the only remaining question is whether there is a relationship between the two.
 
The Board noted in its September 2012 remand that the measurement standard for recording audiometric scores changed between the Veteran's enlistment and separation from service.  Service department records dated prior to November 1, 1967 are presumed to use the ASA standard, rather than the current ISO standard.  Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz.

On the January 1966 entrance examination, pure tone thresholds, in decibels, were as follows, with ISO units in parentheses:




HERTZ



500
1000
2000
3000
4000
RIGHT
15(30)
10(20)
15(25)
N/A
15(20)
LEFT
15(30)
15(25)
15(25)
N/A
5(10)

On the August 1968 separation examination, pure tone thresholds, in decibels, were as follows:



HERTZ



500
1000
2000
3000
4000
RIGHT
5 
10
10
N/A
20
LEFT
5
10
10
N/A
25
The Court has held that the threshold for normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The entrance and separation audiometric scores thus show that the Veteran had some abnormal hearing, but not to a degree that is recognized by VA as a hearing loss disability under 38 C.F.R. § 3.385.  The lack of hearing loss disability at separation is not, however, fatal to the Veteran's claim, as general service connection principles and those specific to hearing loss claims allow for entitlement to service connection for a disease diagnosed after service where the evidence reflects it is related thereto.  38 C.F.R. § 3.303(d); Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

As to whether the Veteran's current bilateral hearing loss disability is related to service, there are conflicting medical opinions.  In March 2006, a private audiologist, Dr. Caudle, noted that examination showed normal left ear hearing and mild right ear high frequency hearing loss, along with 96 percent speech recognition in the right ear and 92 percent in the left ear.  She noted the Veteran's service in an artillery unit where he was exposed to heavy tank and artillery fire and that after service he worked as a fireman and had noisy hobbies.  She also noted that she had reviewed the Veteran's medical records and that, although his hearing was in the normal range at separation, there was a significant shift at 4000 Hertz of 20 decibels in the left ear from induction to separation and no documentation of hearing threshold levels above 4000 Hertz.  She concluded that, based on the in-service noise exposure and threshold shift, the Veteran's hearing loss was at least as likely as not caused by or contributed to by his in-service noise exposure.  Similarly, in August 2008, the director of audiology of Audiological Services of Ellis County noted the Veteran's report of significant in-service noise exposure without hearing protection and a lack of known family history of hearing loss.  After noting a diagnosis of hearing loss in each ear, the audiologist found that, given the Veteran's history of extreme and protracted noise exposure, there was no doubt that such exposure contributed to his hearing loss.

In contrast, a VA physician in February 2006 and May 2008 noted bilateral minimal high frequency sensorineural hearing loss but normal audiometric thresholds for rating purposes, and commented that, although the examination request had indicated some decibel loss while on active duty this was not the case, as there was no significant decline in audiometric thresholds between enlistment and separation.  The physician found that although the Veteran indicated he had significant noise exposure, it would appear that his hearing levels were not affected because hearing loss occurs at the time of exposure and not a number of years later.  He also noted the Veteran's post service employment as a firefighter and that it appeared his hearing levels had not been affected by this, either.  Therefore, the VA physician concluded that the likely etiology of the Veteran's current hearing loss disability was age related presbycusis and not likely ("less likely than not") that it was related to military noise exposure/trauma.

Similarly, after examining the Veteran and reviewing the claims file, the audiologist who conducted the January 2013 VA examination concluded that it as not at least as likely as not that the Veteran's bilateral hearing loss disability was related to service.  She noted the 20 decibel shift at 4000 Hertz in the left ear from enlistment to separation, but indicated that the Veteran's hearing remained within normal limits.  The audiologist cited a study indicating that there was no scientific support for delayed onset hearing loss weeks, months, or years after exposure and found that, given the Veteran's normal hearing at separation, it was more likely that his hearing loss was due to his post service job as a fireman at which he was exposed to loud sirens (even though he stated that he wore hearing protection), his history of shooting firearms with hearing protection, and his age than military noise exposure.

On review of the above medical opinions, the Board finds that the evidence against a relationship between current bilateral hearing loss disability is of greater probative weight than the evidence in favor of such a relationship.  Most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The reasoning of the January 2013 VA examiner was the most extensive, as she was the only health care professional to cite a relevant audiological study and base her conclusion on the information contained therein.  The private audiologists both relied on the fact that the Veteran suffered noise exposure in service but did not address the delayed onset in hearing loss.
All of the opinions were similar in that they did not address the fact that ASA units must be converted to ISO units for the entrance audiometric scores, which were compiled prior to November 1, 1967.  When viewed with the converted figures, there were threshold shifts at 2000 and 4000 Hertz.  Decibel levels went down by 15, from 25 to 10 in both ears at 2000 Hertz and decibel levels went up by 15 in the left ear at 4000 Hertz, from 10 to 25.  Both Dr. Caudle and the January 2013 VA examiner erroneously characterized the shift as 20 decibels in the left ear at 4000 Hertz.  The VA physician in February 2006 and May 2008 interpreted the audiometric results as indicating no significant decline in audiometric thresholds between enlistment and separation.  The January 2013 VA examiner, however, indicated that the Veteran's hearing remained within normal limits.  As noted, the Court in Hensley indicated that the threshold for normal hearing is from 0 to 20 decibels.  However, the context of the January 2013 VA examiner's statement reflects that she was referring to the VA regulation indicating that a hearing loss disability for VA purposes requires audiometric readings of 40 decibels or greater in any frequency between 500 and 4000 or 26 decibels in three of those frequencies.  Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  The Board thus reads the January 2013 VA examiner's statement to accurately note that despite the threshold shift at 4000 Hertz, the Veteran's hearing remained within the limits identified by the applicable regulation as non-disabling.

As all of the opinions were somewhat flawed in not recognizing the necessary conversion, but the reasoning of the January 2013 VA examiner was the most thorough, her conclusion that there was no nexus between current bilateral hearing loss disability and in-service noise exposure is entitled to the most weight.  For similar reasons, the January 2013 VA examination was adequate and substantially complied with the Board's remand instructions in this regard.  Entitlement to service connection on this basis must therefore be denied.

In addition, entitlement to service connection is not warranted on any other basis.  As there was no hearing loss disability documented in service, chronicity has not been established.  Moreover, to the extent that the Veteran claimed that he had continuity of hearing loss symptomatology, he indicated on the August 1968 separation report of medical history that he did not have and had never had hearing loss or ear trouble.  The Board finds that the Veteran's contemporaneous statement made to a health care provider is of greater probative weight than his statements made  many years later during an appeal from the denial of compensation benefits.  See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony).  The Veteran's later statements indicating continuity of symptomatology are therefore not credible.  The preponderance of the evidence thus reflects that bilateral hearing loss disability did not manifest in service, within the presumptive period, or for many years thereafter.

For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss disability on any basis.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d at 1287.


ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.


REMAND

The Veteran has been diagnosed with multiple right shoulder and elbow disorders, most recently on the January 2013 VA examination.  The Veteran has been granted service connection for right wrist fracture, and claims that he injured his shoulder and elbow in the same fall off of an embankment onto a cement slab.  In its September 2012 remand, the Board instructed that the Veteran be afforded a VA joints examination on which the examiner offered an opinion as to whether it is at least as likely as not that any right shoulder or elbow disability was caused or aggravated by service or a service connected disability.  The physician's assistant (PA) who conducted the January 2013 VA examination, noting the Veteran's post-service occupation as a firefighter, indicated that there was nothing in the service treatment records to indicate that there was injury to the Veteran's right shoulder or elbow in service, and that the current right shoulder and elbow disabilities were more likely than not due to the effects of aging and employment as a firefighter causing attrition of the glenohumeral and right blow joint over time, rather than a specific injury to the shoulder and/or elbow in the distant past.  The PA did not, however, address whether the Veteran's right wrist disability caused or aggravated his current right elbow and shoulder disabilities.  A remand is therefore required in order to comply with the Board's remand instructions and obtain an answer to this question.

Accordingly, the claims for entitlement to service connection for right shoulder and right elbow disabilities are REMANDED for the following action:

1.  Request an addendum from the physician's assistant who conducted the January 2013 VA examination.  If the physician's assistant is unavailable, request the opinion from a different health care professional.  The physician's assistant or other health care professional should review the claims file including the January 2013 VA examination report and answer the following questions:

a.  Did the Veteran's right wrist fracture residuals cause either his right shoulder disability or his right elbow disability.

b.  Did the Veteran's right wrist disability aggravate, i.e., make worse, either his right shoulder disability or his right elbow disability.

2.  Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal.  If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs