Citation Nr: 1328777 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-35 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to February 1980 and from February 1981 to February 1984, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This case was previously before the Board in August 2012, when the claim was reopened and remanded for development. This case was again before the Board in March 2013, when the Board remanded the Veteran's claim for an examination. The Veteran was provided with an additional examination in May 2013. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has been effective compliance with the remand instructions. Dyment v. West, 13 Vet. App. 141 (1999). In addition to the issues listed above, in March 2013, the Board remanded the issue of entitlement to service connection for tinnitus. A June 2013 rating decision granted service connection for tinnitus. The Veteran has not filed a notice of disagreement to the rating or effective date assigned, therefore, that claim is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 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 A bilateral hearing loss disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current bilateral hearing loss disability is related to active service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by active service, and hearing loss disability may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis focuses on the most salient and relevant evidence and on what that evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked evidence not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all 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 Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim for service connection for a psychiatric disorder with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in August 2008, April 2009, April 2011, August 2012, and December 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the most recent adjudication in the May 2013 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records, medical treatment records, and records from the Social Security Administration, have been obtained, to the extent available. There is no indication that there is any additional relevant evidence that is available and not part of the claims file. The Veteran was provided with an audiological examination in May 2013. The examiner reviewed the Veteran's claim file and past medical history, recorded his current complaints, conducted an appropriate evaluation, and provided a diagnosis and opinion consistent with the remainder of the evidence of record. In June 2013, the Veteran's representative argued that the May 2013 examination was inadequate, apparently because the examiner considered the results of the Veteran's in-service audiological examinations. The Board acknowledges that service connection for a hearing disability is not precluded solely because hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). However, the May 2013 examiner did not rely solely on normal audiometric testing at service separation as a rationale for the opinion. Instead, the examiner considered the Veteran's entrance and separation audiometric testing, the absence of a significant threshold shift, and medical literature in support of the conclusion. Accordingly, the Board finds that the May 2013 opinion is adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran provided testimony before the undersigned in a May 2012 videoconference hearing, and a transcript of that hearing has been associated with the record. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection for Bilateral Hearing Loss Disability In general, service connection may be granted for disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection for impaired hearing is established only when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels in decibels over a range of frequencies in Hertz. Hensley v. Brown, 5 Vet. App. 155, 158 (1993). VA considers impaired hearing to be a disability when (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or; (b) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or; (c) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Furthermore, as a chronic disease set forth in 38 C.F.R. § 3.309, service connection for bilateral hearing loss may be established based on a continuity of symptomatology. 38 C.F.R. § 3.303(b) (2012). Regarding the presence of a current disability, the Veteran's May 2013 examination report demonstrates that the Veteran has a bilateral hearing loss disability for VA compensation purposes. Therefore, a current disability of hearing loss disability is shown. With respect to the in-service incurrence of a disease or injury, the Veteran's service medical records do not show any complaints, findings, or treatment for hearing loss. The Veteran's October 1979 entrance examination showed puretone thresholds of 20, 10, 20, 20, and 10 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear and 25, 20, 10, 20, and 20 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the left ear. A November 1983 audiometric evaluation showed puretone thresholds 15, 20, 10, and 5 decibels at 500, 1000, 2000, and 4000 Hertz for the right ear and 20, 10, 5, and 10 decibels at 500, 1000, 2000, and 4000 Hertz for the left ear. However, the Veteran is competent to testify as to his own observable symptomatology and in-service experiences. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the Veteran's assertions credible that he served in close proximity to loud noise in service, including artillery fire and large generators. Accordingly, the incurrence of inservice noise exposure is found. With respect medical evidence of a relationship between the current hearing loss disability and service, the Board observes that a January 1987 periodic examination showed puretone thresholds 10, 15, 5, 10, and 15 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear and 15, 15, 5, 10, and 5 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the left ear. A September 1991 periodic examination showed puretone thresholds 25, 20, 10, 20, and 25 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the right ear and 80, 65, 30, 30, and 35 decibels at 500, 1000, 2000, 3000, and 4000 Hertz for the left ear. The Board notes that the audiometric findings for the left ear at 500 and 1000 Hertz were subsequently struck through, presumably by the examiner. However, the Veteran was assessed with mild to moderate bilateral hearing loss at that time. The Veteran denied hearing loss and ear trouble in October 1979, November 1983, and September 1991 Reports of Medical History. The Veteran received a VA examination in May 2013, at which time the examiner opined that the Veteran's hearing loss was less likely as not caused by or a result of an event in military service. As a rationale for that opinion, the examiner noted that the Veteran reported significant noise exposure during service while serving as a communications specialist. The Veteran indicated that he wore headsets for many hours daily, and he indicated that he was exposed to generator noise. The Veteran later served in the Army National Guard, during which time the Veteran reported that he fired machine guns. The Veteran indicated that he was a truck driver in his civilian life. The examiner noted that audiometric testing performed at service enlistment and separation were normal without evidence of a significant threshold shift. The examiner further noted that the examination findings did not support a finding of a delayed onset of hearing loss due to military noise exposure because current medical literature indicates that "understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." Furthermore, the examiner indicated that the Veteran's hearing loss was not a result of his tinnitus. The examiner noted that tinnitus was a symptom of many maladies, only one of which is hearing loss. Not all individuals with hearing impairment report tinnitus and frequently individuals with normal hearing experience tinnitus. To the extent that the Veteran himself believes that his bilateral hearing loss is related to his military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge such as experiencing physical symptoms, including ringing in the ears. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with a VA examination based on the competency of the Veteran's observations. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case of the etiology of a bilateral hearing loss disability, the issue of causation of medical conditions is a medical determination outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record to find a suggestion that the Veteran's condition is related to his military service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's condition and his military service, with greater probative weight than the Veteran's lay opinion. The Board finds that examiner's opinion more persuasive because of the medical training of the examiner. To the extent that the Veteran contends that his bilateral hearing loss disability has existed since service, he has not presented supporting medical evidence for that contention. Voerth v. West, 13 Vet. App. 117 (1999). While the Veteran has generally contended that he first experienced hearing loss in service, it is unclear whether he contends that he has experienced hearing loss continually since service. The Veteran first sought medical treatment for bilateral hearing loss in June 2012, many years after separation from active duty service. Additionally, audiological testing after separation from active service found that hearing loss disability was not present. Despite the Veteran's current contentions that his hearing loss disability has persisted since service, the Veteran's absence of complaints of sensorineural hearing loss both in-service and for years after his separation weighs against a finding of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). Furthermore, without evidence of symptomatology suggesting a hearing loss disability within a year after service, presumptive service connection is also denied. While the Veteran is competent to report symptoms of hearing loss since his military service, the Board finds that, considering the totality of the evidence of record, the Veteran's statements regarding an onset of symptoms shortly after service are not supported by the evidence of record. The contemporaneous record regarding hearing-related matters shows that, rather than experiencing hearing loss since service, the Veteran did not complain of hearing related problems until many years after service, and audiological findings after separation from active service did not show hearing loss disability. Furthermore, a VA examiner, after review of the claims folder and examination of the Veteran, could not conclude that the Veteran's current hearing loss was as likely as not related to the Veteran's service. The Board acknowledges that VA is required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's bilateral hearing loss is not related to his military service. Therefore, the claim is denied. ORDER Service connection for bilateral hearing loss is denied. _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs