Citation Nr: 1328096 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-08 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1973 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a claim of service connection for bilateral hearing loss. In September 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the record. In May 2013, the Board reopened the claim of service connection for bilateral hearing loss and remanded the matter for development and de novo review. FINDING OF FACT A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to an event, injury, or disease in service. CONCLUSION OF LAW Service connection for bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. July and September 2009 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA audiological evaluations in May 2001, January 2005, May 2007, and June 2009, and an ear diseases examination in January 2013. A VA medical opinion based on review of the record was secured in May 2013. The medical evidence is now adequate for proper adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss (SNHL)) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. For the purpose 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, 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's DD-214 reflects that he served in the U.S. Army as a medic. The Veteran's STRs are silent for complaints, findings, or treatment of hearing loss. On June 1973 service entrance physical examination, audiometry revealed puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 10 15 LEFT 10 5 10 10 5 On March 1976 service separation examination, the Veteran's ears were normal on clinical evaluation. Audiometry revealed puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 -- 15 LEFT 15 10 10 -- 0 A May 1995 report of audiological evaluation by Smith's Hearing Aids shows elevated puretone thresholds, bilaterally. On September 1998 audiometry in connection with employment, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 55 70 75 75 65 LEFT 55 70 65 65 65 It was noted that the Veteran had been exposed to noise in the past 14 hours, and that he had worked in a noisy environment. On May 2001 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 55 70 70 70 70 LEFT 60 75 60 70 75 Speech audiometry revealed speech recognition ability of 80 percent in each ear. The diagnosis was moderate to moderately-severe sensory loss bilaterally. In May 2001, the director of safety and compliance for the Veteran's employer submitted a statement indicating that the Veteran had worked as a truck driver. On January 2005 VA audiological evaluation, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 55 70 75 75 80 LEFT 55 70 65 70 75 Speech audiometry revealed speech recognition ability of 60 percent in each ear. At the September 2012 hearing before the undersigned, the Veteran testified that his hearing was damaged by a grenade blast during basic training. He also testified that he told doctors on service separation examination that he had a problem with his hearing. In September and December 2012 statements, the Veteran asserted that his STRs note he had some hearing loss upon discharge from service, and that hearing loss only gets worse with time. He stated that his hearing loss occurred well before he was exposed to any noise as a truck driver. The Veteran's wife also submitted a statement noting that the Veteran's hearing was damaged in service. A November 2012 audiology note includes a VA audiologist's opinion that the onset of the Veteran's hearing loss appears to have happened after 1976, and was a post-military event. The audiologist noted that the Veteran had normal hearing sensitivity at both entrance and separation to service, with no [puretone threshold]] shift from entrance. The May 2013 Board remand, noted that this opinion was inadequate as it did not take into account the lay statements alleging onset of hearing loss in service and continuity since. A January 2013 VA ear conditions disability benefits questionnaire notes the Veteran has bilateral hearing loss. Pursuant to Board remand, the RO secured a medical opinion in this matter based on review of the record by a VA audiologist. In May 2013 the consulting audiologist opined that the Veteran's hearing loss was less likely than not incurred in or caused by service. The audiologist noted that the Veteran's specialty in service was medical specialist (which is considered to be low risk occupation for hearing loss unless [the medic is involved in administering first aid directly combat zone]. The audiologist noted that while the Veteran did serve during the Vietnam Era, his DD-214 he did not [serve in combat], but instead his last overseas assignment on the Ryukyu Islands. The audiologist determined the Veteran's account of acoustic trauma during basic training to be credible and not uncommon; however, she there was no documentation of hearing loss in his service treatment records. Further, the Veteran's separation examination (three years after the reported incident of acoustic trauma in basic training) founds normal hearing sensitivity at all test frequencies bilaterally, and when compared with his thresholds on entrance examination, there is no evidence of any shift of hearing in either ear. The audiologist noted that the earliest documentation of hearing loss appeared to be in 1998, 20 years after discharge from military service, and that after discharge from service, the Veteran had subsequent occupational noise exposure. The audiologist explained that noise exposure may be irrelevant as the etiology though, as the configuration of hearing loss found as of 1998 (and thereafter) is not typical for [hearing loss due to] noise exposure. She stated that the configuration of hearing loss suggests that the etiology is more likely viral or auto-immune. It is not in dispute that the Veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. What he still must show to establish service connection for bilateral hearing loss is that it is related to his service, to include as due to exposure to noise trauma therein. The Veteran's STRs, which include the reports from his service entrance and service separation physical examinations, are silent for any complaints. Findings, or treatment related to hearing loss. Therefore, service connection for bilateral hearing loss on the basis that it became manifest in service and persisted is not warranted. As there is no competent evidence that SNHL disability was manifested to a compensable degree in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. §§ 1112, 1137 chronic disease presumptions (for SNHL as an organic disease of the nervous system). Regarding whether the Veteran's bilateral hearing loss is otherwise related to his service, the only medical evidence that specifically addresses this question consists of the November 2012 and May 2013 VA opinions. The Board determined that the November 2012 opinion (which was against his claim) was inadequate because the audiologist did not take into account lay statements in rendering her opinion. Thus, the only competent and adequate opinion directly addressing a nexus between the Veteran's current hearing loss and his service is the May 2013 VA opinion finding that the Veteran's hearing loss was less likely than not incurred in or caused by service. The VA audiologist reviewed the Veteran's entire claims file, giving consideration to the arguments presented by the Veteran. She noted puretone thresholds on separation were normal, and there is no evidence of a puretone threshold shift in either ear from entrance [to separation]. Further, she noted that the earliest documentation of hearing loss was in 1998, many years after discharge from service, and that during that time, the Veteran had occupational noise trauma as a truck driver. The audiologist also explained that the configuration of the Veteran's hearing loss was not typical for noise exposure, and instead suggested the etiology is more likely viral or auto-immune. As this opinion is by an audiologist (who is competent to offer it) reflects familiarity with the entire record, and includes an explanation of the rationale with citation to supporting factual data (and identifies a nonservice-related etiology for the hearing loss considered more likely), it is probative evidence in the matter Because there is no probative evidence to the contrary, the Board finds it persuasive. The Board notes the Veteran's statements that his hearing loss began in service. However, that allegation is contradicted by his service separation examination, as audiometry at the time was normal; and no pertinent complaints were then noted. Lay persons are competent to provide opinions on some medical questions, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); however, the critical question in this case the etiology of a hearing loss disability first noted many years postservice, falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007)." In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current bilateral hearing loss disability and his service, to include exposure to noise trauma therein. Accordingly, the appeal seeking service connection for bilateral hearing loss must be denied. ORDER The appeal seeking service connection for bilateral hearing loss is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs