Citation Nr: 1328114 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-05 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active service from September 1956 to September 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2013; a transcript of the hearing is associated with the record. In April 2013 and June 2013, the Board remanded the claim for additional development. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT Hearing loss disability was not present until more than one year following the Veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by active service, and the incurrence or aggravation of sensorineural hearing loss during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that the Veteran was provided all required notice in a letter sent in January 2011, prior to the initial adjudication of the claim. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. All relevant medical records have been obtained and associated with the record. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Veteran has been afforded VA medical examinations in response to the claim as well. The Board remanded the case in June 2013 for the purpose of obtaining an adequate opinion with supporting rationale. The July 2013 opinion with supporting rationale provided in response to the Board's directive is adequate for adjudication purposes and in substantial compliance with the requirements articulated in the Board's prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 5000, 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. Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Organization for Standardization (ISO) units to facilitate comparison of results. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The service treatment records are negative for any complaint of hearing loss or finding of hearing loss disability. Whispered voice testing conducted at the time of the September 1956 entrance examination was determined to be normal. Audio testing conducted in October 1956 revealed that, pure tone thresholds, in decibels after conversion from ASA to ISO units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 10 LEFT 30 20 20 20 25 At the time of the August 1960 separation examination, pure tone thresholds, in decibels after conversion from ASA to ISO units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 25 20 LEFT 20 15 10 25 25 The Veteran completed a Report of Medical History in August 1960 wherein he denied having or ever having had ear, nose or throat trouble. In October 1999, the Veteran submitted a claim of entitlement to service connection for a right hand disorder. Hearing loss disability was not claimed. In March 2003, the Veteran underwent an annual follow-up examination. While there were no complaints regarding the Veteran's auditory acuity, an assessment of sensorineural hearing loss was made. It was written that the Veteran had no new concerns or complaints regarding his hearing and he did not wear hearing aids. In May 2003, the Veteran informed a clinician that he had slight ringing in the ears. It was reported that he had had improvement with ear lavage in the past and the Veteran felt he may have a waxy build up. Other than the ringing, the Veteran had no ear complaints. In September 2005, the Veteran submitted his original claim of entitlement to service connection for hearing loss. On the authorized audiological evaluation in January 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 20 25 60 70 LEFT 30 20 25 60 65 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 90 percent in the left ear. The examiner opined that the hearing loss was not likely related to noise exposure during active duty since the discharge examination dated in August 1960 indicated normal hearing sensitivity bilaterally. A VA ear disease examination was conducted in January 2006. The Veteran reported he was a jet mechanic while in service and had had decreased hearing since service. Post-service he had occasionally hunted and also had some noise exposure working with heating and air conditioning. Physical examination was conducted. The examiner observed that the Veteran's hearing loss was not terribly depressed at the time of the examination and the audiogram near the time of discharge was noted to be normal. On a private audiological evaluation in April 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 55 70 65 LEFT 80 65 100 100 95 In June 2011, a private audiologist wrote that the Veteran had moderate to severe sensorineural hearing loss in his right ear and severe to profound sensorineural hearing loss in the left ear. In February 2012, the Veteran wrote that he was exposed to jet engine noise while working as a mechanic. They only hearing protection issued was tiny sponge type protectors. He wrote that his hearing loss began during active duty. On the authorized audiological evaluation in May 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 40 60 60 LEFT 45 20 65 70 75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 80 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was less likely than not caused by or the result of his active service. The rationale provided was that the Veteran had normal hearing thresholds in January 1958 and at the time of the separation examination in August 1960. The examiner noted the Veteran denied occupational noise exposure prior to service. After discharge, he worked for 15 years in heating, venting and air conditioning without hearing protection. He had recreational noise exposure from hunting without hearing protection. The Veteran testified at a hearing before the undersigned in January 2013. He reported that he was exposed to aircraft noise and also weapons during training. He did not use hearing protection while working on the planes. He first noticed hearing loss the last year of his active duty service. After service, he worked on heating and air-conditioning systems. He denied that that was a noisy environment. The Veteran denied being a hunter or having post-service noise exposure. In February 2013, a private audiologist wrote the Veteran presented with complaints of difficulty hearing and understanding speech in January 2013. Testing was interpreted as revealing mild, sloping to severe sensorineural hearing loss in the right ear and moderate sloping to profound sensorineural hearing loss in the left ear. The author noted that, without being privy to a baseline audiogram prior to service, the exact determination of the cause of the hearing loss could not be made. However, if the Veteran worked in an area where there was far more noise exposure on the left side than on the right, that could possibly be an explanation for the dramatic difference between the ears and indeed could substantiate the theory that noise exposure played a significant role in the loss. In May 2013, an addendum to the May 2012 VA examination report was promulgated. The examiner again opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by the Veteran's active service. The rationale provided was that the audiological testing conducted in October 1956, January 1958 and in August 1960 revealed hearing thresholds within normal limits with no significant threshold shift. It was noted that the Veteran reported a history of occupational and recreational noise exposure following service without the use of hearing protection. The examiner opined that the Veteran's hearing loss was caused by factors other than his active service. The examiner found that, to opine as to the exact factors of the hearing loss over the past 50+ years would be mere speculation. In July 2013, the examiner who prepared the reports of the May 2012 and May 2013 audiological examinations again found the Veteran's hearing loss was not linked to active duty. The rationale was that the service treatment records revealed hearing thresholds were within normal limits at 500Hz-6000Hz in October 1956 and were also within normal limits at 250Hz-8000Hz bilaterally at the time of the August 1960 separation examination. The examiner further observed that there was no significant threshold shift noted when the August 1960 audiometric examination was compared with the October 1956 audiometric examination. The examiner then wrote there was no evidence of hearing loss during the Veteran's active service and that it was not likely that the Veteran's hearing loss is related to any service event or injury. Analysis The Board notes that there was evidence of hearing loss during active duty but the extent of disability did not rise to a level of hearing loss for VA purposes. Significantly, the Veteran denied having or ever having had problems with his ears at the time of his discharge. There is no competent evidence of the presence of sensorineural hearing loss to a compensable degree within one year of the Veteran's discharge. The discharge examination did not document sufficient pathology and no audiological evaluation was performed within one year of discharge. To the extent that the Veteran has alleged he had had hearing loss since discharge, these allegations are insufficient to document the presence of hearing loss to a compensable degree within one year of discharge. The Veteran is competent to report that he experienced hearing loss during active duty and thereafter. However, the extent of the hearing loss requires specialized audiological testing which was not conducted. The extent of the hearing loss cannot be quantified based on the Veteran's own self-reported history. Furthermore, the Veteran's own self-reported medical history at the time of discharge weighs against a finding that hearing loss to a compensable degree was present within one year of discharge. The Veteran denied any ear problems at the time of discharge. Based on the above, the Board finds that service connection is not warranted for sensorineural hearing loss on a presumptive basis. While there is competent evidence of post-service of hearing loss disability for VA purposes, none of the post-service medical evidence includes a probative opinion linking any currently existing hearing loss to the Veteran's active duty service. Service connection is not warranted for hearing loss on a direct basis. The evidence of record linking the Veteran's existing hearing loss to his active duty service is limited to the Veteran's own allegations and testimony. Although the Veteran is competent to state that he experienced episodes of hearing loss in service, the Board accords more weight to the audiological testing conducted during service as to the presence of hearing loss at that time. Additionally, while he contends that his hearing loss is related to noise exposure during his active service, there is no indication that the Veteran has the requisite expertise to render a competent opinion concerning the etiology of his hearing loss. Moreover, even if the Board were to concede that he is competent to render such an opinion, his opinion is clearly outweighed by the medical opinions against the claim. Moreover, with respect to the Veteran's statements to the effect that his hearing loss began in service and continued thereafter, the Board finds reason to place reduced probative value on the Veteran's self-reported medical history based on conflicting evidence which affects the Veteran's credibility. The Board notes the Veteran denied having or ever having had problems with his ears while on active duty. The Board believes that, if the Veteran had noticed decreased audio acuity during active duty, he would have reported this on the Report of Medical History he completed at the time of his separation examination. The Veteran's past actions during active duty undercut the current allegations of continuous hearing loss symptomatology from the time of discharge to the present. Not only may the Veteran's memory be faulty with the passage of time, but self interest may play a role in the more recent statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (personal interest may affect the credibility of testimony). The Board further notes that, at the time of the January 2013 video conference hearing, the Veteran denied having any post-service noise exposure including noise exposure while hunting. However, at other times, the Veteran admitted to post-service noise exposure from his occupation and also from his hunting activities. This conflicting evidence supports the Board's determination that reduced probative value should be placed on the Veteran's self-reported medical history. As discussed above, the medical opinions addressing the etiology of the Veteran's hearing loss are against the claim. The most recent opinion is based on a review of the Veteran's pertinent history and the examination of the Veteran. Moreover, it is properly supported. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's bilateral hearing loss disability. In reaching this decision, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable to this claim. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs