Citation Nr: 1328587 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-19 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) from May 1965 to October 1965, and August 1969 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2012 and November 2012 the Board remanded the matter for additional development. The virtual VA file has been reviewed. FINDING OF FACT Chronic hearing loss was not manifest during service and hearing loss disability is not attributable to service. CONCLUSION OF LAW Hearing loss disability was not incurred in or aggravated by active duty for training. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A June 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the appellant of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The appellant has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in October 2007 and March 2012 however they were partially inadequate as they did not address the question of whether hearing loss was at least as likely as not related to chronic otitis media in service. This question was addressed in an August 2013opinion. When read together, the examinations and opinion are adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners reviewed the record, evaluated the appellant or record and provided an opinion as to whether bilateral hearing loss was related to service. The August 2013 opinion addressed the possible connection between the in service otitis media and his current bilateral hearing loss. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA or training), or injury incurred while performing inactive duty training (INACDUTRA or training). 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002 & Supp. 2012). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods, however, do not apply to periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477- 78 (1991). Therefore, consideration of 38 C.F.R. § 3.309 (presumption of service incurrence for certain diseases) for the appellant's periods of ACDUTRA is not appropriate. However, an organic disease of the nervous system is a chronic disease. 38 U.S.C.A. § 1101. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The appellant contends that his bilateral hearing loss disability is due to his exposure to loud noise in service, specifically being subjected to noise from firing weapons, non-muffled engines in the motorpool while rebuilding and testing engines, and working without hearing protection. He also contends that his hearing loss may be related to the chronic otitis he was treated for in September 1970 noted at his separation examination. Service treatment records demonstrate that his hearing was within normal limits during service and upon exit. The April 1965 entry examination and September 1965 exit examinations were within normal limits. The September 1970 exit examination was within normal limits from 500 to 2000 hertz, and at 25 decibels at 4000 hertz in the right ear. The exit examinations were negative for complaints of, treatment for, or diagnosis of hearing loss. At the September 1970 separation examination he was noted to have chronic purulent otitis media in the right ear which was treated with ampicillin In October 2007 a VA examination was conducted and the appellant was diagnosed with mild bilateral sensorineural hearing loss. Specifically, audiometric testing revealed: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 40 40 60 60 70 96 LEFT 40 50 60 65 65 84 The October 2007 VA examiner reviewed the claims file and service treatment records, noting the reports of exposure to artillery, explosions, and tanks in service. The examiner opined that the hearing loss was not caused by or a result of military noise exposure with the rationale that the appellant had normal hearing at the time of separation. In March 2012 another VA examination was conducted with the following audiometric testing results: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 30 30 50 70 75 92 LEFT 30 55 60 70 70 92 The March 2012 VA examiner reviewed the claims file, examined the appellant and determined that the hearing loss was not at least as likely as not caused by or a result of military service, and provided the rationale that the audiograms from 1965 and 1970 showed hearing within normal limits. As neither VA examiner addressed the question of whether the in service chronic otitis media was related to his current hearing loss an additional opinion was sought. In August 2013 an examiner reviewed the claims file and opined that the bilateral hearing loss was less likely than not incurred in or caused by chronic purulent otitis media which was diagnosed at the time of the September 1970 exit physical. The examiner explained that the appellant entered and exited service with normal hearing and that he had normal hearing on his separation physical despite evidence at the time of chronic purulent right otitis media, which was adequately treated. There was no evidence of continuing problems with the appellant's right ear after service and there were no documented medical complaints of decreased hearing until November 2004 and the earliest diagnosed bilateral sensorineural hearing loss was in a January 2005 private evaluation. The Board concedes that the Veteran was exposed to loud noise in service. In addition, post service testing establishes the presence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The remaining question is whether a finding of a nexus between service to include the in-service noise exposure and current disability is warranted. There is no evidence of a hearing loss during service. The appellant contends that his current hearing loss began in service. The appellant is competent to report a decrease in hearing acuity as that is something he has experienced through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). However the audiological testing conducted in service shows that he did not have a hearing loss disability during service. In addition, although there was a finding of 25 at one frequency on the right, examiners have found that such notation was normal in this case. Thus, he did not have hearing loss or hearing loss disability during service. To the extent that he implies that he had hearing loss during service, his lay evidence is far less probative than the contemporaneous in- service testing. The appellant contends that a diagnosis of chronic otitis media meets the requirements of "chronicity and continuity" under 38 C.F.R. § 3.303(b). The provisions of 38 C.F.R. § 3.303(b) have 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, 708 F.3d 1331 (Fed. Cir. 2013). As the periods of service are all ACDUTRA (and such service is not otherwise "active service"), the presumptive provisions relating to chronic diseases do not apply. However, 38 U.S.C.A. § 1101 is applicable. Since he has an organic disease of the nervous system, section 3.303(b) is potentially applicable. However, neither hearing loss disability nor an organic disease of the nervous system was noted during service. Furthermore, there were no characteristic manifestations of the disease process (organic disease of the nervous system) identified during service. Therefore, section 3.303(b) is not applicable. The pleading that his in service chronic otitis media caused his current hearing loss is outweighed by the August 2013 medical opinion which found the opposite, that his current hearing loss is not related to in service noise exposure or his in service otitis media. The Board is fully aware of the holding in Hensley that normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, here the examiners have determined that the finding, in the case of a veteran with otitis, was normal. The probative evidence establishes that hearing loss was not manifest in service; rather his acuity was normal. The first demonstrated hearing loss disability was in 2005, decades after service. Furthermore, the most probative evidence establishes that the remote onset of hearing loss disability is unrelated to service. The lay evidence is far less convincing than the service records and the medical opinion in this case. The weight of the evidence is against a finding that the current hearing loss is related to service to include in service noise exposure or chronic otitis media. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for bilateral hearing loss disability is not warranted. ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs