Citation Nr: 1328344 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 13-05 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1966 to December 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was exposed to loud noises (acoustic trauma) in service. 2. Symptoms of bilateral hearing loss were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. 3. Bilateral hearing loss was not shown for many years after service and is not causally or etiologically related to service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) 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, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This matter was filed as a fully developed claim (FDC) pursuant to Secretary of Veterans Affairs Eric K. Shinseki's program to expedite VA claims. Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a veteran is to submit all evidence relevant and pertinent to his or her claim other than service treatment records and treatment records from VA medical centers, which will be obtained by the VA. Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the veteran. See VA Form 21-526EZ. The notice that accompanies the FDC form informs the veteran what evidence is required to substantiate a claim for service connection, the veteran's and VA's respective duties for obtaining evidence, and information on how VA assigns disability ratings in the event that service connection is established. See VA Form 21-526EZ. In this case, the Veteran has received all essential notice, and has had a meaningful opportunity to participate in the development of his claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Thus, the notice that is part of the claim form submitted by the Veteran satisfies the VCAA duty to notify. VA also satisfied its duty to assist the Veteran in the development of the claim. As part of his participation in the expedited claims processing afforded to veterans who elect the FDC process, the Veteran agreed to submit all private treatment records relevant to the claim simultaneously with that claim and to adequately identify and authorize VA to obtain relevant medical records from a Federal facility. Specifically, the information and evidence that have been associated with the claims file includes the VA examination report, the addendum opinion to the VA examination report, a 2005 National Academies of Science IOM report cited in the December 2011 Notice of Disagreement, and lay statements. Neither the Veteran, nor his representative, has indicated that relevant Federal medical records are missing from the file, nor have they indicated that there is any private medical evidence that is relevant and necessary for a fair adjudication of the claim. On his February 2011 VA Form 21- 526EZ, the Veteran signed his name under the preprinted statement asserting that he had "enclosed all the information or evidence that will support [his] claim to include identifying records from Federal treating facilities, or [he has] no other information or evidence to give VA to support [his] claim." Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's appeal. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Indeed, even when the adequacy is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Here, the Veteran was provided with a VA audiological examination (the report of which has been associated with the claims file) in April 2011. In December 2011, the Veteran filed a Notice of Disagreement asserting the examiner's opinion was fatally flawed because normal hearing at separation from service should not determine the outcome of his claim for service connection. In January 2013, an addendum opinion was obtained to clarify the rationale for why the Veteran's hearing loss was less likely than not caused by or a result of in-service noise exposure. In his January 2013 Substantive Appeal, the Veteran again claimed that the addendum opinion was fatally flawed because normal hearing at separation from service should not determine the outcome of his claim for service connection. The Board finds the VA examination and addendum opinion were thorough and adequate. During the April 2011 VA examination, the VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, conducted clinical testing that included audiometric testing and speech recognition testing, and provided the information necessary to evaluate the disability. As discussed below, the Veteran was diagnosed with a current bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 and the examiner provided an opinion with regard to the etiology of the Veteran's bilateral hearing loss disability. Additionally, the examiner for the January 2013 addendum opinion reviewed the claims file and previous VA examination opinion and provided an opinion supported by reasons and bases. As such, the Board finds the examination report and addendum opinion are adequate to adjudicate the Veteran's claim for service connection and no further examination is necessary. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection for Bilateral Hearing Loss Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2012). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss. Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including sensorineural hearing loss, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. As part of his current VA disability compensation claim, the Veteran has asserted that his bilateral hearing loss is related to service. He has submitted statements describing his in-service noise exposure and his belief that his in- service noise exposure caused his current bilateral hearing loss. First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In an April 2011 VA examination, audiometric testing showed hearing loss disability in both ears as defined by VA regulations; therefore, a current disability of hearing loss for VA purposes is shown. Next, the Board finds that the Veteran experienced in- service acoustic trauma. Specifically, the Veteran's DD Form 214 shows that he served on active duty from February 1966 to December 1969 as a loading crewmember. Moreover, at the April 2011 VA audiological examination, he described being exposed to noise from aircraft which was consistent with his service. 38 U.S.C.A. § 1154(a) (West 2002). As such, his account is found to be sufficiently credible to support a finding of in-service noise exposure. However, exposure to acoustic trauma alone does not mandate that service connection be granted. Rather the noise exposure must be shown to have caused his current hearing loss disability, or to have caused chronic or continuous symptoms of hearing loss or hearing loss to 10 percent within one year of service to be presumed as incurred in service. As the Veteran's current bilateral hearing loss is a chronic disease under 38 C.F.R. § 3.309(a), the Board will consider whether chronic symptoms in service or continuity of symptomatology since service have been shown. The evidence of record reflects no complaints of hearing loss until the Veteran filed his initial claim for service connection in February 2011, approximately 40 years after his separation from service. Service treatment records are negative for complaints of findings of hearing loss. Additionally, evidence of record does not show that the Veteran has received any hearing treatment or evaluation except for the April 2011 VA audiological examination. This examination was also the first, and only, recorded diagnosis that the Veteran has hearing loss as defined by VA regulations, coming approximately 40 years after service separation. As such, the Board finds that the evidence does not reflect continuity of symptomatology. The Board has also considered the Veteran's assertion, made as part of the current VA disability compensation claim, that his bilateral hearing loss is related to service. In his February 2013 Substantive Appeal, the Veteran's representative contends that the Veteran began noticing difficulty hearing in service and has continued to experience symptoms of hearing loss since his discharge from service. In this case, the Board finds that the weight of the evidence demonstrates that he did not experience chronic symptoms of bilateral hearing loss in service or continuous symptoms of bilateral hearing loss since service. First, regarding chronic symptoms in service, while the Veteran now claims continued problems since service, on a more contemporaneous medical history survey, conducted in conjunction with the service separation physical examination, the Veteran specifically denied having ever experienced hearing loss. Second, clinical testing during service did not show any hearing loss or even any worsening of hearing during service. The Veteran's service treatment records show that audiometric testing was conducted at the time of his entry into service in December 1965 and at service separation in November 1969 and neither test documents any reports of hearing difficulties or problems with his ears. Of note, prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards. At the enlistment physical in December 1965, the Veteran's ears were found to be clinically normal. In an associated report of medical history, he denied having any problems with his ears. During the enlistment physical, audiometric testing was conducted. The converted decibel thresholds are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 5 Not reported 10 LEFT 20 15 5 Not reported 10 At the service separation physical in November 1969, the Veteran's ears were again found to be clinically normal. In an associated report of medical history, he denied having any problems with his ears. During the separation physical, audiometric testing was conducted. The decibel thresholds are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 5 0 5 LEFT 5 -5 -5 -5 5 Additionally, the Veteran's service treatment records are absence of any complaint of hearing difficulties or trouble with his ears. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Next, on the question of continuous symptoms since service, the post-service evidence does not reflect complaints or treatment for bilateral hearing loss until the Veteran filed his claim in February 2011, more than 40 years following active service. The Board emphasizes the multi-year gap between discharge from active duty service (1969) and initial reported symptoms related to bilateral hearing loss in 2011 as one factor, among others, weighing against a finding of continual symptoms since service. 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); 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). Additionally, the Veteran did not claim that symptoms of his bilateral hearing loss began in (or soon after) service until he filed his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). For these reasons, the Board finds that the weight of the evidence is against a finding of continuity of symptomatology after service. In addition, as shown above, the diagnosis of bilateral hearing loss was not rendered for 40 years after the Veteran's discharge from service. Also, there are no audiometric test scores or speech recognition scores to show a hearing loss disability per 38 C.F.R. § 3.385 until 2011. The only treatment or evaluation for his hearing loss of record is the April 2011 VA examination, also 40 years after separation from service. Therefore, bilateral hearing loss was not shown within the first year of discharge and the presumptions under 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.309 do not apply. As such, the criteria for presumptive service connection have not been met. Nonetheless, as a bilateral hearing loss disability per 38 C.F.R. § 3.385 is currently shown and the evidence reflects in-service acoustic trauma, the next question is whether there is a causal relationship or nexus between the current hearing loss disability and the in-service acoustic trauma. The evidence weighing against a finding of a casual relationship includes a negative VA examination opinion. In April 2011, the Veteran underwent a VA examination at which audiological testing confirmed a current diagnosis of bilateral hearing loss. The examiner reviewed the claims file, including service treatment records. The examiner noted the Veteran had in-service noise exposure and that, after service, he worked in a factory for nine years. The Veteran denied a family history of hearing loss, use of ototoxic drugs, ear infection, and ear surgery. The Veteran reported occasional dizziness. The examiner opined that the Veteran's current disability was less likely than not caused by service based on the audiometric evaluations conducted at the time of his entrance physical and separation physical that both indicated hearing were well within normal limits with no significant change between the two tests. In support of his claim, the Veteran's representative cited to a 2005 National Academies of Science IOM report entitled "Noise and Hearing Loss" (in his December 2011 Notice of Disagreement). According to the Veteran's representative, the IOM report addresses issues including the time course of hearing loss following noise exposure, delayed onset noise- induced hearing loss, and what hearing tests are adequate to assess noise-induced hearing loss. The Veteran's representative stated that the IOM report specifically recommended that the tests include measurements above the 6000 Hz level in order to document the characteristic "notch" associated with noise-induced hearing loss during service, and that, because adequate tests were not conducted for noise-induced hearing loss during service, audiologist who have provided negative nexus opinions in this case have no basis to conclude that noise-induced hearing loss was not demonstrated in service. The RO requested an addendum opinion to the April 2011 VA examination to clarify the examiner's rationale as to why the Veteran's hearing loss is less likely than not related to service. The January 2013 addendum opinion notes that the Veteran's hearing thresholds at the separation physical were well within normal limits, and that current studies do not support the concept of delayed onset of hearing loss due to noise exposure. The Board finds that the April 2011 VA examination and January 2013 addendum opinion were adequate for evaluation purposes and highly probative. Specifically, during the VA examination, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history and in-service as well as post-service noise exposure or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. The examiner took into account the audiometric test results from the Veteran's enlistment and separation physicals and the absence of any hearing problems for a number of years following separation from service. See Hensley, 5 Vet. App. at 157 (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The examiner noted that the Veteran's post-service noise exposure included working in a factory for nine years. Additionally, the addendum opinion specifically addresses the rationale as to why the Veteran's bilateral hearing loss is less likely than not related to service. The examination report and addendum opinion contained reasons and bases supporting the examiner's opinions that the Veteran's bilateral hearing loss was less likely than not caused by or incurred in service. Therefore, the Board finds the VA examination and addendum opinions to be of great probative value. The Board acknowledges that the Veteran has cited to an IOM study in support of his bilateral hearing loss claim. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). The IOM report provided a general recommendation that audiometric testing include measurements above the 6000 Hz level and only a possibility of delayed onset hearing loss, but does not show a probability that delayed onset is likely related to in-service noise exposure. As such, the Board accords the IOM report less probative weight then the April 2011 VA examination and January 2013 addendum opinion that specifically evaluated the facts and circumstances surrounding this particular case, including the Veteran's in-service noise exposure, current bilateral hearing loss, and whether a nexus exists between the two. In this decision, the Board has also considered the Veteran's lay statements as they pertain to a nexus between current complaints and service. 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 v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability claim, the Veteran has asserted that his hearing loss was caused by his active service. As noted above, in his February 2013 Substantive Appeal, the Veteran's representative stated that the Veteran began noticing difficulty hearing in service and has continued to experience symptoms of hearing loss since his discharge from service; however, this is an inaccurate fact, as the weight of the evidence shows chronic in service or continuous post-service symptoms of hearing loss did not occur. The Board has weighed the Veteran's statements regarding chronic and continuous symptoms of hearing loss, and finds his current recollections and statements made in connection with a claim for VA compensation benefits, including as reported or asserted by the representative, to be of lesser probative value than his previous, more contemporaneous in-service history and the findings at service separation, the absence of complaints or treatment for years after service, and the April 2011 VA examination and January 2013 addendum opinion. For these reasons, the weight of the evidence demonstrates that symptoms of hearing loss were not chronic in service or continuous since service. Moreover, while the Board reiterates that the Veteran is competent to report symptoms as they come to him through his senses (e.g., that he appreciated diminished hearing acuity), bilateral hearing loss, as defined by VA regulations, is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. See Layno, 6 Vet. App. 465; Jandreau, 492 F. 3d at 1377 n. 4. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. In this case, the Board attaches greater probative weight to April 2011 VA examination and January 2013 addendum opinion than to the Veteran's lay statements. For these reasons, the Board finds that the weight of the evidence is against a finding of a nexus between his current claim and service. As such, the criteria for either direct or presumptive service connection have not been met, and the Veteran's claim must be denied. Because the preponderance of the evidence is against the finding of service connection, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this issue on that basis, and the claim must be denied on both a direct and presumptive basis. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs