Citation Nr: 1328294 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-50 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from September 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss, bilateral tinnitus, thyroid cancer, and posttraumatic stress disorder (PTSD). The Veteran's notice of disagreement was received in June 2009. An interim, June 2009 rating decision granted service connection for major depressive disorder, anxiety disorder NOS, with PTSD and generalized anxiety disorder features (claimed as PTSD and depression); as that constituted a full grant of the benefit sought for the service connection claim for PTSD, that issue is longer before the Board for appellate consideration. A statement of the case was issued for the matters of bilateral hearing loss and tinnitus, and thyroid cancer. In December 2009 the Veteran perfected an appeal only as to the issue of bilateral hearing loss. Since an appeal for bilateral tinnitus and thyroid cancer has not been perfected, those matters are not, at this time, before the Board for appellate consideration. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. FINDINGS OF FACT 1. A right ear hearing loss disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is right ear hearing loss disability otherwise causally related to the Veteran's active duty service; right ear sensorineural hearing loss was not manifested in the first postservice year. 2. A left ear hearing loss disability was not manifested during the Veteran's active duty service or for many years thereafter; nor is left ear hearing loss disability otherwise causally related to the Veteran's active duty service; left ear sensorineural hearing loss was not manifested in the first postservice year. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service, and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in January 2008 and October 2008 letters the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. He was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in January and October 2008 addressing the claim for service connection for hearing loss, which was prior to the December 2008 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the 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 v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection. Further, the January and October 2008 letters provided notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes the Veteran's service pre- induction examination and the examination prior to discharge, service personnel records, VA treatment records, and a VA examination report. The Veteran's Virtual VA (electronic records) file has been reviewed and the medical records contained therein are not pertinent to the matter currently on appeal. Accordingly, the Board concludes that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. For the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Legal Criteria, Factual Background and Analysis The issue before the Board involves a claim of entitlement to service connection for bilateral hearing loss. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). Sensorineural hearing loss (organic disease of the nervous system) may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). For the purpose of applying the laws administered by VA, impaired hearing will be considered 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 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. The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in- service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385 . . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post- service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to this claim. The Veteran is seeking entitlement to service connection for bilateral hearing loss, which he contends is as a result of exposure from aircraft engine noise, which occurred on a daily basis while he was stationed at an airbase in Vietnam. He further contends that he was exposed to noise from gunfire during basic training and during advanced individual training (AIT). His DD 214 documents that he served in the U.S. Army and that his military occupational specialty (MOS) in service was decontamination specialist. Service personnel records show he also had duties as a chemical equipment repairman; and during his tour in Vietnam (September 1968 to August 1969) he served as an assistant postal clerk, assistant window clerk and as a postal supervisor. During the Veteran's September 1966 pre-induction physical examination, his ears were clinically evaluated as normal. The audiological evaluation showed puretone thresholds, in decibels, as: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) -5 (5) X 0 (5) LEFT -5 (10) -5 (5) 0 (10) X 30 (35) [The figures in parentheses represent conversions of the American Standards Association (ASA) units to the International Standards Organization (ISO)-American National Standards Institute (ANSI) units and are provided for data comparison purposes.] In an associated report of medical history, the Veteran denied that he had or had previously experienced hearing loss, ear trouble of any sort, or worn hearing aids. During the Veteran's August 1969 service separation physical examination, his ears were evaluated as clinically normal. He was also afforded an audiological evaluation, which showed puretone thresholds, in decibels, as: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 0 X 10 LEFT 25 10 10 X 30 In an associated report of medical history, the Veteran denied that he had or had previously experienced hearing loss, ear trouble of any sort, or worn hearing aids. The earliest postservice treatment reports of record are dated in October 2005 and they are void of any complaints, treatment or diagnosis of hearing impairment. In a February 2008 audiology consult report, the Veteran was seen for an evaluation for his hearing; he had been referred to audiology by his primary care physician. He reported a gradual decrease in his hearing over many years. He stated that he had been exposed to noise in the military (served in a support group in Vietnam for one year) and post-military while working in the mining industry. He denied a history of ear infections/surgeries and any family history of hearing loss. Testing revealed a bilateral sensory hearing loss with mild to profound impairment beginning at .25 kilo hertz. Tympanograms were within normal limits bilaterally and word recognition test scores were good. On April 2008 VA audiology examination, the Veteran reported that his MOS was in chemical warfare. He reported that he spent one year in Vietnam with the 448th APU. He stated that he worked in a service company at three separate bases; an airbase in Quin Hon, and two transportation compounds. He reported spending five to six months at the airbase and was exposed to aircraft engine noise on a daily basis while unloading cargo planes. He stated that he was transferred to the transportation compound where he was exposed to noise from heavy equipment and large diesel trucks as they were being moved about the base. He also reported military noise exposure from weapons fire during basic training and AIT. After service, he mowed lawns for a few years then went into the contracting business for 30 years until he retired in 2003. He denied any recreational noise exposure. His first hearing test was in January 2008. On the authorized audiological evaluation pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 60 70 LEFT 20 15 25 65 90 Speech audiometry revealed speech recognition ability was 68 percent in the both ears. The diagnosis was sensorineural type hearing loss beginning at 3000 Hertz in both ears. After reviewing the Veteran's claims file, the examiner opined that the Veteran's hearing loss is less likely as not (less than 50/50 probability) caused by or a result of noise exposure while in the military. By rationale the examiner noted that the Veteran's 1966 pre-induction physical showed that the left ear demonstrated a mild 30-decibel hearing loss at 4000 Hertz with normal hearing documented at all other test frequencies in both ears. The 1969 separation examination was unchanged. The left ear continued to demonstrate a mild 30-decibel hearing loss at 4000 Hertz with normal hearing shown at all other test frequencies in both ears. This indicates that the Veteran's hearing was not damaged during military enlistment. Based on the evidence, the examiner opined that the Veteran's current bilateral hearing loss was less likely as not caused by or the result of military noise exposure. The foregoing evidence reveals the Veteran has a current disability of bilateral hearing loss. However, the preponderance of the evidence is against a finding that there is a nexus to service. The record includes a medical opinion against such a nexus. The examiner reviewed the inservice audiological test results and acknowledged the 30- decibel reading at 4000 Hertz in the left ear shown on both the August 1967 pre-induction examination and the August 1969 separation examination. However, the examiner found no basis for finding a worsening of hearing acuity during service to suggest a link between the hearing loss disability which developed years after service and any acoustic trauma during service. See Hensley. The examiner's opinion is consistent with a comparison of the two inservice audiological examination reports which show only minor differences (some slightly higher and some slightly lower) in the threshold readings at the pertinent Hertz levels. The Board finds that the opinion is fully adequate and was rendered with consideration of the guidance set forth in Hensley. The separation examination report also shows that the Veteran himself did not complain of hearing loss at that time; in fact, on his separation medical history report, he indicated that he had not had or at that time had hearing loss. This suggests to the Board that the Veteran did not in fact believe he suffered from a hearing impairment at that time as it is reasonable to expect that he would have reported such to military medical personnel during his separation examination. After all, the express purpose of the exit examination was to document any ongoing service- related problems. The Veteran's failure to report pertinent complaints at the time of discharge examination diminishes the credibility of his current assertions (made many years after the fact in the course of seeking monetary benefit). Thus, the Veteran's assertions of continuity since service are found to be not credible evidence of such in light of the negative separation medical examination and history reports. Therefore, the Board finds that service connection for bilateral hearing loss on the basis that it became manifest in service and persisted since is not warranted. As there is no competent evidence that sensorineural hearing loss was manifested in the first postservice year, there is also no basis for considering (and applying) 38 U.S.C.A. § 1112 chronic disease presumptions (for sensorineural hearing loss as an organic disease of the nervous system). The Board acknowledges the Veteran's December 2009 statement (on VA Form 9) that his time on the airfield in Vietnam and other areas had to some degree caused his hearing loss. The Board further observes that the alleged in-service noise exposure took place several decades prior to the earliest time that the Veteran ever sought evaluation for the claimed hearing problems. The Board notes that the Veteran's earliest postservice hearing evaluation was in February 2008 when he was referred by his primary care physician for a hearing test that revealed a bilateral sensory hearing loss with mild to profound impairment beginning at .25 kilo hertz. That was approximately 39 years following active duty service. The Board emphasizes the multi-year gap between discharge from active duty service (1969) and initial contemporaneous documentation of reported symptoms related to bilateral hearing loss in 2008. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). Moreover, on 2008 VA examination the Veteran reported postservice noise exposure when he mowed lawns for a few years and worked in the contracting business for 30 years. After thorough review of the evidence currently of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss. Consequently, the benefit-of-the- doubt rule does not apply, and service connection for bilateral hearing loss is not warranted. 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 bilateral hearing loss is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs