Citation Nr: 1328691	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  13-00 394	)	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

Appellant represented by:	Missouri Veterans Commission



ATTORNEY FOR THE BOARD

Dan Brook, Counsel






INTRODUCTION

The Veteran served on active duty from May 1964 to December 1967.  

This appeal to the Board of Veterans' Appeals (Board) arises from a December 2011 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans' Affairs (VA).


FINDING OF FACT

Although the Veteran was exposed to acoustic trauma during service, hearing loss was not shown during service or for many years thereafter and is not shown to be related to service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the Veteran 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.  See 38 C.F.R. § 3.159(b)(1).

A January 2011 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's responsibilities.  The letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

With regard to the duty to assist, the claims file contains the service treatment records, the VA reports of audiological examinations, VA treatment records dated through 2012, and the assertions of the Veteran and his representative.   The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim.  No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim.


II.  Analysis

In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may 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) (2012).  In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

For a 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 distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means 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.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

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).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The Veteran's service treatment records show that his hearing was found to be within normal limits during his May 1964 enlistment examination.  An April 1965 progress note indicates that the Veteran got jet fuel in his left ear.  The ear canal was irrigated with water and the canal and drum were noted to be red.  It was also noted that the ear required no further treatment at that time.  At his October 1967 separation examination, hearing was also found to be within normal limits with audiometry revealing that puretone thresholds (in decibels) were: 





HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
0
5
10
LEFT
0
0
0
0
0

On his October 1967 report of medical history at separation, the Veteran indicated that he had never had hearing loss.  

In his December 2010 claim, the Veteran reported that he had experienced hearing loss since the year 2000.  He noted that his primary duty during service was the refueling of incoming and outgoing aircraft.  He indicated that the noise level from the jet engines was extreme and that there was no way to protect against it.  He also reported that he was involved in an accident during refueling when a hose blew off a fuel truck and the fuel hit him full force in the face.  He was saturated with JP4 fuel and had to go to the hospital to have it removed from his eyes, nose, ears and mouth.  He asserted that his hearing was impaired as a result of the exposure to the loud noise from the jet engines and the involvement in the accident during refueling.  

At a September 2011 audiological evaluation done on behalf of VA and conducted by a private audiologist, audiometry revealed that puretone thresholds (in decibels) were: 





HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
35
65
70
LEFT
30
30
35
65
70

The average puretone thresholds were 50 decibels, right ear, and 50 decibels, left ear.  Speech audiometry revealed that speech recognition was 90 percent in the right ear and 92 percent in the left ear.  The Veteran reported problems in communication, listening to television and in situations where background noise was present.  The diagnosis was bilateral sensorineural hearing loss.   The examiner found that the Veteran's hearing loss was not at least as likely as not related to service.  The examiner commented that this opinion was based on the Veteran's hearing test results at his separation examination, which showed normal hearing sensitivity across frequencies for both ears.  

In his January 2012 notice of disagreement, the Veteran indicated that he was also exposed to acoustic trauma during service by firing his M16 and by being in Vietnam during wartime.  The Veteran indicated that he did not know exactly when his bilateral hearing loss started but that he was positive it began approximately one year after entering service.  

At a December 2012 audiological evaluation done on behalf of VA and conducted by the September 2011 private audiologist, audiometry revealed that puretone thresholds (in decibels) were: 





HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
25
60
65
LEFT
15
20
25
60
65

The average puretone thresholds were 45 decibels, right ear, and 40 decibels, left ear.  Speech audiometry revealed that speech recognition was 88 percent in both ears.   The diagnosis was bilateral sensorineural hearing loss.  The examiner found that the Veteran's hearing loss was less likely than not caused by or a result of an event in military service.  The examiner commented that service entrance and exit audiometric results revealed normal hearing sensitivity and that the record contained no subsequent independent audiometric results until September 2011.  Also, the current audiometric results failed to reveal any asymmetry in threshold levels to indicate damage to the left ear from the fuel exposure incident in service.  

On his December 2012 Form 9, the Veteran requested a compensation and pension examination by a VA audiologist to substantiate his claim.  He did not feel that the audiologist who had conducted the previous audiological evaluations was familiar with the standards pertaining to hearing loss claims set by VA.  

The evidence clearly shows that the Veteran was exposed to acoustic trauma during service, in the form of significant aircraft noise and some level of weapons noise.  It also shows that the Veteran has a current hearing loss disability by VA standards.  However, the evidence weighs against a finding that the current hearing loss disability is related to service.  Notably, after reviewing the record and examining the Veteran in both September 2011 and December 2012, the private audiologist specifically found that the Veteran's current hearing loss was less likely than not related to service.  The examiner supported this finding with a specific rationale; that hearing was normal on separation examination in 1967 and that there was subsequently no medical evidence of hearing loss until 2011.  The examiner also specifically considered whether left ear hearing loss could be related to the incident of left ear fuel exposure during service  but concluded that such a relationship was also less likely than not, reasoning that an asymmetric pattern of hearing loss in the left ear was not present.  The Board finds that these rationales for the examiner's conclusion are adequate for decisional purposes.  See e.g. Monzingo v. Shinseki, 26 Vet. App. 97 (2012).   Additionally, there are no medical opinions of record to the contrary (i.e. medical opinions tending to indicate that the Veteran's current hearing loss is related to his military service).  Moreover, while the Veteran asserts that the hearing loss is related to service, as a layperson, he is not shown to have any specific expertise concerning the etiology of such loss.  Accordingly, his assertion is entitled to minimal probative value.   See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

The Veteran has also requested that he receive a VA audiological evaluation, asserting that he did not feel that the audiologist who had conducted the September 2011 and December 2012 VA audiological evaluations was familiar with the standards pertaining to hearing loss claims set by VA.  Review of the evaluation reports show that the audiologist was provided specific instructions to ensure that the evaluations were conducted according to VA disability standards and that the findings that are fully compatible with VA disability standards.  There is also no indication from the reports that the audiologist lacked familiarity with the controlling VA standards.  Accordingly, without any evidence that the reports are inadequate aside from the Veteran's general assertion, the Board finds that they are adequate for decisional purposes.  

The Board also notes that in his January 2012 notice of disagreement, the Veteran asserted that he did not know exactly when his bilateral hearing loss started but that he was positive it began approximately one year after entering service.  However, in his earlier December 2010 claim, he specifically reported that his hearing loss began in the year 2000.  Given this earlier specific report (made against his interest in receiving service connected compensation), the Board does not find credible the later, more indefinite report of hearing loss beginning one year after entering service.  Accordingly, as hearing loss was shown to be normal on testing during service and hearing loss was not actually diagnosed until 2011, there is no basis for awarding service connection for the disability on a direct or  presumptive basis based on manifestation within service or within the first post-service year.  38 C.F.R. §§ 3.303, 3.307, 3.309.    

In sum, because bilateral hearing loss was not shown during service or for many years thereafter and because the weight of the evidence is against a finding that the current hearing loss is related to acoustic trauma or fuel exposure during service, the preponderance of the evidence is against this claim and it must be denied.  

 
ORDER

Service connection for bilateral hearing loss is denied.  



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs