Citation Nr: 1328346 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-27 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his daughter-in-law, and his son ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1967. This matter came before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned Veterans Law Judge at the RO in April 2011. A transcript of the hearing is associated with the record. When the appeal was before the Board in July 2011, the instant issues were remanded for additional development of the record. These issues have been returned to the Board for appellate consideration. The issue of entitlement to service connection for a left eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT Bilateral hearing loss disability was not manifest in service or until many years thereafter, and is unrelated to service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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); 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in February 2007, prior to the adjudication of the Veteran's claims, discussed the evidence necessary to support a claim for service connection. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the preadjudicatory notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to VA's duty to assist, VA and private treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the most recent examination was adequate, in that it was conducted by a neutral, skilled provider who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing her conclusions. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant must show: "(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 or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service incurrence or aggravation of diseases of the central nervous system (e.g., sensorineural hearing loss) may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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) (West 2002). With specific regard to claims involving hearing loss, the Court of Appeals for Veterans Claims (CAVC) has observed that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, 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, 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 (2012). On pre-induction examination in October 1965, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 LEFT 5 (20) -5 (10) 0 (10) Not tested 5 (10) RIGHT 0 (15) 5 (15) -10 (0) Not tested -5 (0) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. 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, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) At the time of the pre-induction examination, the Veteran endorsed ear, nose, or throat trouble. The examiner noted that the Veteran reported nasal congestion and colds. He made no notation of any hearing or ear complaints. On separation examination in November 1967, the following puretone thresholds were elicited: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 5 Not tested 5 RIGHT 5 5 5 Not tested 5 The examiner indicated "none" in the summary of defects and diagnoses, and the Veteran was deemed qualified for separation. Post-service evidence includes medical records from the Veteran's employer, Norfolk & Western Railway Company, dated from April 1969 to November 2004. In October 1981 the Veteran reported that he had no difficulty with hearing. In October 1983 he denied that he did not wear hearing protection in his job as a switchman. He denied ringing in his ears or other ear trouble. In October 1985 and October 1987 the Veteran denied difficulty with hearing. On testing in October 1987 the Veteran denied noise exposure in a second job or during military service. In an October 1989 letter to the Veteran, his employer indicated that evaluation had revealed essentially normal conversational hearing, and that he was required to wear hearing protection at work. A December 1990 letter indicated the same information. In May 1993 and May 1994, the Veteran was advised by his employer that evaluation of his hearing did not show any medically related problems under current medical guidelines. In May 1995 the was advised that he had a change in hearing in one or both ears at some tones and that he would be monitored. In October 1995 the Veteran denied hearing difficulty. In June 1999 and June 2000 the Veteran was advised that evaluation of his hearing did not show any medically related problems under current medical guidelines. In October 2001 the Veteran denied fluctuating, sudden, or rapid hearing loss. He indicated that he had been exposed to gun fire in the Army. In November 2004 the Veteran again denied hearing difficulty. On VA audiometric examination in April 2007, the Veteran reported that he was a marine engineer during service. He endorsed fluctuating hearing loss, left greater than right. He attributed his hearing loss to an episode in service when jet fuel spewed on his left side, including his ear. He indicated that his hearing "shut down" until a doctor put liquid in the ear, and that his hearing then recovered. He reported that his hearing had progressively worsened over the years. He stated that both he and his fiancé had noticed a hearing problem when he returned from service. He indicated that he fired weapons during service and that he was also exposed to firefights. He denied occupational or recreational noise exposure. The examiner indicated that repeated attempts were made at obtaining reliable reported hearing thresholds, but were ultimately unsuccessful. She advised that the Veteran's reported hearing thresholds should not be used for rating purposes due to the poor reliability of the Veteran's responses. At his April 2011 hearing, the Veteran testified that he was exposed to a lot of loud noise during service. Specifically, he indicated that he was exposed to noise from jet engines, helicopters, ships. He also stated that he was involved in fire fights. On VA examination in August 2011, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 LEFT 35 45 25 25 30 RIGHT 40 50 25 30 35 Speech recognition scores were 84 percent bilaterally. The examiner noted that she had reviewed the claims file. She concluded that hearing loss was less likely as not caused by service. She noted that there was documentation from the Veteran's employer showing normal hearing in 1983, and that the initial complaint of hearing loss was 40 years following service. She indicated that her opinion was based on review of the claims file and the remoteness of the complaint of hearing loss from time of service. Upon careful review of the evidence, the Board has concluded that service connection is not warranted for bilateral hearing loss disability. In this regard, objective audiometric findings fail to show significant decreased hearing acuity during service or for many years thereafter. The earliest post-service complaint for any problems with the Veteran's hearing acuity (and diagnosis) dates to a May 1995 record from the Veteran's employer. This is many years following the Veteran's separation from service; therefore, the presumption for service connection for sensorineural hearing loss is not applicable. To grant service connection in this case, the evidence must demonstrate a nexus between the current diagnosis and the Veteran's service. The August 2011 VA examiner concluded that it was not likely that hearing loss was related to service. In reaching that conclusion, she considered the service medical records and records produced by the Veteran's employer. In essence, the August 2011 examiner provided a reasoned opinion, based on complete review of the record, interview, and examination. In assigning high probative value to the August 2011 opinion, the Board notes that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Rather, she provided a full discussion of the Veteran's documented history and of his own reported history before ultimately concluding that the Veteran's hearing loss was not related to service. The Board thus finds the most recent VA examiner's opinion to be of greater probative value than the Veteran's statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered whether self-reported continuity of symptomatology of hearing loss dating to service might be sufficient to warrant service connection. In this regard, the Veteran is certainly competent to report that he experiences difficulty hearing. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, even where a Veteran asserts continuity of symptomatology since service, he is not necessarily competent to establish a nexus between the continuous symptomatology and the current claimed condition. See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001). Here, pursuant to his claim for VA benefits, the Veteran has indicated that he experienced difficulty hearing during service, and that others noted such difficulty following his separation from service. However, records from the Veteran's long-time employer show that he repeatedly denied hearing problems, and that his hearing was within normal limits for many years following service. As such, the Board finds that the Veteran's more recent statements regarding onset of hearing loss and continuity of symptoms since service not credible. In sum, the Board finds the opinion of the competent August 2011 VA examiner to be the most probative evidence of record on the question of whether the Veteran's current hearing loss disability is related to service. As noted, the August 2011 VA examiner considered his statements as to his history, but also considered the results of objective audiometric testing that occurred in service, records of hearing tests in the years following service, and the nature and severity of the Veteran's current hearing loss disability. In short, for the reasons and bases set forth above, the Board concludes that the claim of entitlement to service connection for bilateral hearing loss disability must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. REMAND In the July 2011 remand, the Board noted that the June 2007 VA eye examiner failed to provide any rationale for his conclusion that the claimed eye disability was unrelated to service. A new eye examination was ordered. On examination in August 2011, the Veteran provided a history of jet fuel sprayed into his left eye when a hose came loose. The examiner noted that the Veteran's claims file was not available for review. Following examination, he noted that there was decreased vision in the left eye, not accounted for by cataract or retinal findings. She concluded that the history of retinal scar and posterior synechiae were as likely as not related to in-service trauma. She also concluded that dry eye syndrome was as likely as not related to in-service chemical burn/trauma with residual conjunctival scarring and chronic dryness and pain/irritation. In a September 2011 addendum, the examiner noted that she had reviewed the claims file. She noted that there was minimal information in the service records concerning an episodes of jet fuel into the left eye reported by the Veteran. She indicated that the only incident was a mention of a brief eye examination where the Veteran complained of redness and pruritis in both eyes in September 1967, with no mention of injury or chemical in the eyes. However, she indicated that her previous conclusions stood. She did not provide the underlying rationale for her conclusions. In light of the apparent conflict, and the lack of objective evidence of trauma in service, the Board finds that the examiner must be asked to discuss the rationale for her conclusions. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the physician who conducted the August 2011 examination. The examiner is asked to review the claims file (including the discussion in this remand). If the August 2011 examiner is unavailable, the claims file should be forwarded to a similarly qualified practitioner for the requested review and opinion. If it is determined that an additional examination of the Veteran is required in order to address the questions posed, such should be scheduled. Following review of the claims file (and examination of the Veteran if deemed necessary), the examiner should indicate whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current left eye disability is related to any disease or injury in service. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. Review of the entire file is required; however, attention is invited to the service treatment records and records from the Veteran's employer. If the examiner is unable to offer any of the requested opinions, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs