Citation Nr: 1328747 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 05-15 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1962. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho (RO). The Board denied the Veteran's claim for entitlement to service connection for bilateral hearing loss in an April 2008 decision; however, that decision was vacated when the U.S. Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) in April 2010. The Board observes that the Veteran's claims file is a rebuilt claims file, and that the original claims file was lost during the course of his appeal. Although there are indications in the claims file that the Veteran may have appointed The American Legion as his representative in the past, the current claims file does not reflect a power of attorney appointing any representative. Accordingly, in May 2013, the RO sent the Veteran a letter advising him of his choices in appointing a representative and asking that he respond by providing the appropriate form appointing a representative within 30 days. The Veteran did not respond to the May 2013 letter; accordingly, the Board will presume that he does not wish to be represented in his current appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent and probative evidence of record does not relate the Veteran's bilateral hearing loss to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With regard to the Veteran's claim to for entitlement to service connection for bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Letters dated in May 2004 and March 2006 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); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a readjudication of the claim). The record reflects that the Veteran's original claims file was lost and that his claims file has been rebuilt. The Board acknowledges that a substantial portion of the Veteran's records are unavailable for review. Most notably, the Veteran's service treatment records, his initial claim seeking entitlement to service connection, all prior rating decisions, the statement of the case and any subsequent supplemental statements of the case, the Veteran's notice of disagreement and substantive appeal, lay statements, and private medical treatment records have not been located despite the RO's attempts. In that regard, the RO has followed appropriate procedures to locate the original claims file and to rebuild the current file. The RO contacted the Records Management Center, the Salt Lake City VA Medical Center, and the Boise RO, but all three responded that the Veteran's original claims file was not located at their facility. Additionally, the RO contacted the National Personnel Records Center (NPRC), but in a January 2013 response, the NPRC reported that they did not have any copies of the Veteran's service treatment records. Last, in an April 2013 memorandum, the RO stated that all available documents were associated with the Veteran's rebuilt claims file, and that anything not shown does not exist and further attempts to locate any additional evidence would be futile. The Veteran was advised that his claims file was lost and of the RO's attempts to rebuild it in an April 2013 letter. He was also notified that no further action would be taken to locate the lost records, that he should submit any evidence in his possession, and that he was ultimately responsible for providing the evidence. The Veteran did not respond to the RO's April 2013 letter. The Board has kept this unfortunate situation in mind while addressing the Veteran's claim, and realizes that in such situations there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit-of-the-doubt doctrine. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran's service personnel records and VA treatment records have been obtained and associated with the claims file. The claims file does not reflect that the Veteran identified any private medical treatment records with regard to his claim. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no evidence suggesting that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran was most recently provided with a VA examination addressing the etiology of his bilateral hearing loss in April 2013. Review of the examination report reflects that it is adequate upon which to base an appellate decision, as it is based upon a complete review of the Veteran's claims file as well as an audiological examination of the Veteran. Moreover, the examiner provided supporting explanation and rationale for the opinion provided. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, 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 Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran contends that service connection for bilateral hearing loss is warranted. The Board's April 2008 decision states that the Veteran reported noise exposure during active duty service from firing artillery and shooting rifles without ear protection. He also noted that he spent time training in artillery with howitzers and had exposure to various armament fire while training, service on a rifle team, and service as a weapons instructor. The April 2008 decision also indicates that, in a March 2004 statement, the Veteran denied post-service acoustic trauma from employment, and reported that he wore ear protection while hunting and shooting. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If the condition in service is not shown to be chronic, service connection may be established by way of evidence demonstrating continuity of symptomatology. Id. As previously noted, the Veteran's service treatment records have been lost. Nevertheless, the April 2008 Board decision provides a summary of the pertinent service treatment records. Of note, the April 2008 Board decision reflects that the service treatment records did not show any complaints of or findings of hearing loss. A June 1962 separation examination showed the following results on audiological examination: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) NA 5 (10) LEFT 0 (15) 5 (15) 0 (10) NA 5 (10) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures 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.). As noted in the April 2008 Board decision, the Veteran's DD-214 shows that the Veteran was a 2nd Lieutenant with an artillery battalion. The prior Board decision also indicates that the Veteran supplied orders dated in June 1956 showing that he was appointed as a gunner. The April 2008 Board decision notes that private medical treatment records were provided, which included audiological examinations from April 2001 to February 2004. An April 2001 private audiological examination was reported to show pure tone thresholds, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 30 50 65 LEFT 35 35 20 25 30 The prior Board decision reflects that, in February 2004, a private physician stated that he treated the Veteran over the years for various ear, nose, and throat complaints; that the Veteran had not been exposed to significant post-service noise; that the Veteran had a long history of sensorineural hearing loss; that the Veteran was experiencing significant subjective difficulty hearing conversations; and that the Veteran attributed his hearing loss to service. The physician stated that he did not have access to the Veteran's service records and did not know whether an audiogram was performed prior to discharge. The physician did not provide an opinion as to the etiology of the Veteran's hearing loss. VA treatment records beginning in 2004 note the Veteran's complaints of bilateral hearing loss. In November 2004, the Veteran established care with VA, and reported a history of hearing loss. Examination of the ears was normal, and hearing was reported to be grossly intact. The diagnoses included hearing loss. A February 2006 VA treatment record notes that the Veteran reported a long history of noise exposure during service as well as in civilian activity. The record reveals that the Veteran was recently found to have asymmetrical sensorineural hearing loss with the right side being worse than the left. There was no history of ear surgeries. Physical examination of the ears showed the canals to be clear, bilaterally. Tympanic membranes were intact and Weber lateralized to the left. Air conduction was greater than bone conduction, bilaterally. An audiogram was reviewed, which showed downward sloping sensorineural hearing loss, bilaterally. The right ear had much more significant hearing loss. The diagnosis was asymmetrical hearing loss, greater on the right than the left, likely related to noise exposure. The physician noted that the Veteran was assigned to howitzer units during the military and that he had much more noise exposure to his right ear than his left ear. A May 2006 magnetic resonance imaging scan (MRI) of the brain was normal. In November 2005, the Veteran underwent a VA audiological examination. He complained of difficulty hearing when the speaker is on his right side, when the television is on, and in noise. The Veteran reported a history of military noise exposure from self-propelled Howitzers with his right ear towards the gun, small arms, and large guns. He indicated that he was on a military rifle team. He noted civilian noise exposure from hunting and limited all-terrain vehicles. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 40 60 80 LEFT 30 25 20 25 35 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 98 percent in the left ear. Immittance testing indicated normal middle ear pressure and compliance, bilaterally. Ipsilateral and contralateral acoustic reflex thresholds were present at 1000 Hertz in the right side. No contralateral reflex decay was noted in that ear. Ipsilateral and contralateral acoustic reflex thresholds were absent or elevated in the left ear. The VA examiner diagnosed right ear mild to severe sharply sloping sensorineural hearing loss and left ear mild to moderately severe high frequency sensorineural hearing loss. After reviewing the Veteran's claims file, including the audiological evaluation performed at his separation from service, the examiner concluded that it was not likely that the Veteran's hearing loss was the result of military noise exposure, as the Veteran's hearing at discharge was normal. The April 2008 Board decision states that, in March 2006, the Veteran reported that the audiological results reported in his separation examination were incorrect and not based upon an audiogram. He indicated that a tuning fork method was used instead. The Veteran also reported that he suffered hearing loss for over 30 years and that he was treated by a private physician. The April 2008 Board decision also reveals that a May 2008 lay statement from one of the Veteran's fellow servicemen confirms the Veteran's reports of noise exposure while firing artillery during service. In August 2011, the Veteran underwent another VA audiological examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 85 95 LEFT 40 40 35 45 45 Speech audiometry revealed speech recognition ability of 66 percent in the right ear and of 96 percent in the left ear. Acoustic immittance was normal, bilaterally, but ipsilateral and contralateral acoustic reflexes were abnormal, bilaterally. The diagnosis was bilateral sensorineural hearing loss. After reviewing the Veteran's claims file, the VA examiner concluded that it was not at least as likely as not that the Veteran's hearing loss was caused by or a result of his active duty service. The examiner explained that the Veteran's entrance examination suggested that he passed a hearing screening test, and the separation examination showed normal hearing sensitivity at that time. The examiner acknowledged the Veteran's concerns that the separation examination was not accurate, but concluded that it was assumed that the separation evaluation was an accurate assessment of the Veteran's hearing loss at the time of discharge. Accordingly, the examiner concluded that it was not likely that the Veteran's hearing loss was the result of noise exposure during his active duty service. In April 2013, the Veteran underwent another VA audiological examination. The examiner reported that the Veteran's claims file was reviewed. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 60 80 90 LEFT 45 45 35 45 50 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 98 percent in the left ear. Acoustic immittance testing was normal, bilaterally. Ipsilateral acoustic reflexes were normal in the right ear but abnormal in the left ear. Contralateral acoustic reflexes were abnormal in both ears. The diagnosis was bilateral sensorineural hearing loss. After reviewing the Veteran's claims file, the VA examiner concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of his military service. The examiner acknowledged that the Veteran's original service treatment records were not in the claims file, but found the results of the Veteran's June 1962 separation examination in the claims file. The examiner acknowledged that the results of the June 1962 audiological evaluation were likely reported in ASA standards, as opposed to ISO standards. Accordingly, the examiner provided a conversion of the results reported in June 1962 from ASA to ISO standards. However, the examiner explained that, even using the conversion, the 1962 results show hearing within normal limits in both ears at discharge, and that the claims file did not document hearing loss until 2005. The examiner explained that the medical literature regarding noise exposure indicates that it is unlikely that a delayed onset of hearing loss due to noise exposure occurs. The examiner quoted the pertinent medical literature in the opinion provided. After a thorough review of the evidence of record, the Board concludes that service connection for bilateral hearing loss is not warranted. A current diagnosis of bilateral hearing loss is of record. 38 C.F.R. § 3.385; Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Bilateral hearing loss was not diagnosed within one year of service discharge; thus, service connection is not warranted on a presumptive basis. 38 U.S.C.A. § 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Although the Veteran's service treatment records do not reveal complaints of or treatment for bilateral hearing loss during active duty service, the Veteran has provided competent and credible statements that he had noise exposure during service, which are supported by the lay evidence of record as well as the Veteran's service personnel records. Accordingly, the Board accepts the Veteran's statements as evidence of in-service acoustic trauma. Nevertheless, the weight of the probative evidence does not relate the Veteran's current bilateral hearing loss to his in-service acoustic trauma. The Board acknowledges that, in February 2006, a VA physician linked the Veteran's bilateral hearing loss to his in-service noise exposure. The VA physician's opinion was based on the Veteran's competent and credible reports of in-service noise exposure, and the rationale for the opinion explained that the hearing loss was likely related to noise exposure because the hearing loss was asymmetrical and the Veteran reported more noise exposure in the right ear than the left. However, the February 2006 VA physician did not have the benefit of a review of the Veteran's service treatment records, the results from his June 1962 separation examination, or any evidence in the Veteran's claims file. As this evidence is pertinent to determining whether the Veteran's current hearing loss is related to his in-service noise exposure, the Board does not afford the February 2006 VA opinion significant probative value. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). The Board also acknowledges the February 2004 letter from the private physician, which the Veteran submitted in support of his claim. However, as noted by the Board's April 2008 decision, the private physician did not provide an opinion as to the etiology of the Veteran's hearing loss. Therefore, the February 2004 private letter is essentially non-evidence. Perman v. Brown, 5 Vet. App. 237, 241 (1993) (finding that an opinion that did not provide a yes or no opinion constituted non-evidence in support of service connection). In contrast, the opinion provided by the April 2013 VA examiner is entitled to significant probative value. The VA examiner reviewed the available evidence in the rebuilt claims file, including the results of the Veteran's separation examination, as reported in prior examination reports. The examiner converted the results from that 1962 separation examination from ASA to ISO standards, and concluded that, based upon the evidence of record, the Veteran's current bilateral hearing loss was not related to his in-service noise exposure. The examiner explained that, even using the conversion, the separation examination showed that the Veteran's hearing was within normal limits, and that based upon the current medical literature, it is unlikely that noise exposure causes a delayed onset of hearing loss. The Board finds the April 2013 VA examiner's opinion to be highly probative in this case, as it considers all of the pertinent evidence in the claims file and provides supporting explanation and rationale for the conclusion that the Veteran's current bilateral hearing loss is not related to his in-service noise exposure. The Board acknowledges the Veteran's lay statements that he has a long history of hearing loss. Sensorineural hearing loss is recognized as a chronic disease for which service connection may be granted when there is evidence of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran does not contend, and the evidence does not show, that he has had bilateral hearing loss continuously since active duty service. In March 2006, the Veteran reported that he suffered hearing loss for over 30 years. As the Veteran was separated from active duty service in 1962 and 30 years prior to March 2006 is approximately 1976, the Veteran's lay statements do not suggest that he has had bilateral hearing loss continuously since active duty service. Additionally, as noted by the April 2013 VA examiner, the Veteran's separation examination reflected normal hearing, bilaterally, at service discharge. Accordingly, entitlement to service connection for bilateral hearing loss based upon continuity of symptomatology is not warranted. With regard to the Veteran's allegations that the audiological results reported in his 1962 separation examination were incorrect, as the testing method used was a tuning fork method rather than an audiogram, the Board observes that the available evidence does not support the Veteran's contentions. As noted above, the June 1962 separation examination provided the results of an audiogram, which was likely reported in ASA rather than ISO standards. There is no evidence in the claims file which suggests that a tuning fork method was used for the Veteran's audiological examination at separation from service, other than the Veteran's own contentions. Moreover, there is a presumption of regularity that service physicians and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005). The United States Court of Appeals for Veterans Claims has consistently held that the law presumes the regularity of the administrative process. Id.; Crain v. Principi, 17 Vet. App. 182, 186 (2003). Thus, the Board must conclude that, if the Veteran's hearing had been tested by use of a tuning fork method rather than by determining pure tone thresholds in a standard audiological examination, that would have been documented in his separation examination. Based on the probative medical opinion provided by the April 2013 VA examiner, the criteria for entitlement to service connection for bilateral hearing loss are not met, as the preponderance of the evidence is against the claim. There is no doubt to be resolved, and entitlement to service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs