Citation Nr: 1328796 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-23 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hearing loss of the right ear. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2012, the Board remanded the appeal to afford the Veteran an opportunity to present testimony at a hearing. In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. In April 2013, the Board remanded the appeal to obtain the Veteran's service personnel records and records of treatment from the Dublin VA Medical Center (VAMC) and to schedule the Veteran for a VA audiological examination to determine the nature and etiology of the hearing loss of his right ear. Accordingly, the RO obtained the requested records and afforded the Veteran an examination, the report of which is substantially responsive to the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). In January 2011, the Veteran filed a claim for service connection for a prostate disorder. That claim has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The hearing loss of the Veteran's right ear was noted at his service entrance examination. 2. Any increase in the pre-existing hearing loss of the Veteran's right ear during active service was due to the natural progress of the disease. CONCLUSION OF LAW Hearing loss of the right ear was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Veteran was notified via letter dated in July 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in August 2007. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment and personnel records, as well as post-service reports of VA treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. VA provided the Veteran with an examination in May 2013 to determine the nature and etiology of his disability. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2012). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report to be thorough and adequate upon which to base a decision on the claim. The examiner personally interviewed and examined the Veteran, and provided the information needed to decide the claim. A brief but relevant and important opinion was provided. The Board finds the opinion to be adequate, as it was based on a full reading of the claims file as well as the Veteran's own pertinent statements. Accordingly, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz 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 (2012). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). In this case, the Veteran contends that his right ear hearing loss was incurred in, or aggravated by, his active service. The Veteran's hearing in his right ear at induction in September 1967 was shown to be 30(45), 35(45), 40(50), 45(55), and 55(60) decibels at 500, 1000, 2000, 3000, and 4000 Hertz respectively. [The Board notes that, prior to November 1967, in-service audiometric examination findings were generally reported in standards set forth by the American Standards Association (ASA). In this case, the findings were specifically noted as being in ASA standards. Those are the figures on the left 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 findings have been converted from ASA standards to ISO-ANSI standards, which are represented by the figures in parentheses.] The September 1967 examiner noted that the Veteran had a hearing defect of his right ear that was not considered disabling. Although the examiner did not consider the Veteran's hearing loss to be disabling, hearing loss of his right ear was nevertheless noted during his service entrance examination. Hensley v. Brown, 5 Vet. App. 155 (1993). In fact, the Veteran's auditory thresholds at that time indicate hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. Thus, the Veteran's hearing loss of his right ear pre-existed active service, and the question becomes whether the pre-existing hearing loss of the right ear was aggravated by such service. An April 1968 service treatment record shows complaints of trouble hearing out of the right ear and indicates that the Veteran was waiting to change to clerk school. A record dated later that month reflects that three audiograms showed a right conductive gap. A May 1968 record indicates that the Veteran had been scheduled for some type of ear surgery but failed to report due to a change in his duties. Hearing in his right ear prior to separation in March 1969 was shown to be 35, 50, 40, 45, and 50 decibels at 500, 1000, 2000, 3000, and 4000 Hertz respectively. At that time, he reported that he had been advised to have surgery in his right ear but decided not to because he did not think that it would help. An April 1969 audiogram also reflects hearing loss disability of the right ear, showing 15(30), 25(35), 45(55), 50(60), and 60(65) decibels at 500, 1000, 2000, 3000, and 4000 Hertz respectively. [As above, the figures on the left are in ASA standards and those on the right are in ISO-ANSI standards.] A record dated that same day shows a diagnosis of mild conductive or mixed hearing loss of the right ear of questionable etiology. Post service, a May 2006 VA treatment note reflects that the Veteran was hard of hearing in his right ear. Similarly, a September 2010 VA treatment note in his Virtual VA file reflects that he had impaired hearing. At the September 2012 hearing, the Veteran testified that he did not have hearing loss of his right ear prior to service and that he was first informed of it during service when his orders to go to the Republic of Vietnam were changed and his military occupational specialty was changed to that of a supply clerk. He further testified that his original military occupational specialty was that of infantry, which exposed him to a lot of noise, including from firing his weapon every day. He added that, although he used hearing protection, it would often fall out of the ear. The Veteran's hearing difficulties were observed at the hearing. As there was evidence of a current hearing loss disability of the right ear, the Board requested a VA examination to determine whether the pre-existing hearing loss of the right ear was aggravated by active service. The Veteran underwent an examination in May 2013. Audiometry revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 50 55 80 100 Speech recognition score on the Maryland CNC Word List was 80 percent in the right ear. The examiner provided a diagnosis of sensorineural hearing loss in the right ear and indicated that there were no significant changes in hearing thresholds in service. The examiner indicated that the hearing loss of the Veteran's right ear existed prior to service and that the pre-existing hearing loss was not aggravated beyond normal progression in service. The examiner explained that there was mild to moderate loss in the right ear at the start of service in 1967 and no change at separation in 1969. The VA examiner reviewed the in-service audiograms and stated that there was no change in the Veteran's hearing from service entrance to separation. There is also no objective evidence dated within a few years of service discharge clearly showing an increase in disability. The VA examiner specifically concluded that the Veteran's pre-existing hearing loss was not aggravated beyond normal progression in service. Thus, the Board finds that any increase in the pre-existing hearing loss of the Veteran's right ear during active service was due to the natural progress of the disease. Accordingly, the Board concludes that the Veteran's pre-existing hearing loss of the right ear was not aggravated by active service. With respect to the Veteran's assertion that his right ear hearing loss was not found at induction but rather during service just before he was to go to Vietnam, the Board notes that his service personnel records show that he was scheduled to go to Vietnam in March 1968 but was eventually sent to Europe. They also show that his military occupational specialty changed from Light Weapons Infantryman when he was scheduled to go to Vietnam to Civil Support Team when transferred to Fort Polk, then changed to a Personnel Records Specialist when transferred to Fort Lewis, and further changed to Supply Clerk when transferred to Europe. They further show that he was transferred to Fort Lewis due to medical reasons, as indicated by the code MR which stands for medical readiness, and administrative purposes. While the above corroborates the Veteran's assertion that he was not sent to Vietnam due to his hearing loss, as discussed earlier, the record clearly shows that he had hearing loss at induction. Although the Veteran may not have been told of his hearing loss disability at induction, it was nevertheless noted at that time. A lay person is competent to give evidence about observable symptoms such as decreased hearing. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the question of aggravation extends beyond an immediately observable cause-and-effect relationship. The Veteran, as a lay person, is not competent to address the question of aggravation. Also, as discussed herein, the medical evidence shows that the Veteran's right ear hearing loss was not aggravated by his active service. In conclusion, service connection for hearing loss of the right ear is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hearing loss of the right ear is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs