Citation Nr: 1328871 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 12-11 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active duty military service from January 1968 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT Right ear hearing loss for VA purposes was not manifest in active service or within one year thereafter; the Veteran's current right ear hearing loss is not otherwise etiologically related to such service. CONCLUSION OF LAW The criteria for service connection for right ear hearing have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran in February 2010, prior to the initial adjudication of his claim in August 2010. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and VA treatment records with the claims file. Private medical records have also been associated with the file. The Veteran has not identified any treatment records aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA provided the Veteran an audiological examination in April 2010, with an addendum opinion obtained in August 2010, to address his claims of service connection for right ear hearing loss. The examination and the opinion are adequate as the VA examiners considered the relevant history of the Veteran's hearing loss, they provided a sufficiently detailed description of the Veteran's current hearing loss, and the proffered opinions included supporting analysis. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. Analysis 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For certain chronic diseases, including organic diseases of the nervous system, such as high frequency sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). In deciding the Veteran's claim, VA 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (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. The Veteran asserts that he suffers from right ear hearing loss as a result of in-service acoustic trauma. The VA credits the Veteran's testimony regarding his experiences in Vietnam and, on that basis, has conceded that the Veteran suffered in-service acoustic trauma. See 38 U.S.C.A. § 1154(b) (West 2002). For purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; 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. The report of the April 2010 VA examination establishes that the Veteran has current hearing loss in his right ear that constitutes a disability for VA purposes. See 38 C.F.R. § 3.385. The Veteran's service treatment records do not indicate that he was diagnosed with or treated for symptoms of sensorineural hearing loss in his right ear during service. For instance, his separation examination noted normal hearing in his right ear. See January 1970 Report of Medical History (indicating 10db threshold in right ear at 500 Hz, 1000 Hz, and 2000 Hz); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) ("the threshold for normal hearing is from 0 to 20db, and higher threshold levels indicate some degree of hearing loss"). Consistent with these service records, the Veteran informed the VA examiner, as relayed in the examiner's April 2010 report, that the Veteran's in-service symptoms were confined to his left ear because he had turned his head to directly expose only the left ear to a grenade explosion. Thus, the Board finds that chronic sensorineural hearing loss in the Veteran's right ear did not manifest during his service. The first diagnosis of chronic sensorineural hearing loss in the Veteran's right ear was made in the April 2010 VA audiological examination. Because the Veteran's right ear hearing loss was not manifest to a compensable degree within one year of the Veteran's separation from service, service connection may not be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). The Board acknowledges that, in his January 2010 claim, the Veteran stated that, while on active duty, he "was exposed to all types of acoustic trauma" and that he suffered "hearing loss...ever since." The Veteran is competent to report this sort of symptom. See Davidson v. Shinseki, 581 F.3d 1313 (2009). However, the Veteran's statement is ambiguous regarding whether he experienced in-service hearing loss in his right ear, particularly in the context of service treatment records previously discussed indicating that the Veteran only had hearing loss in his left ear at separation. Because the Veteran's assertion is ambiguous and it appears to have been clarified by the Veteran's aforementioned April 2010 statement, which specified that the symptoms were experienced in the left ear only, the Board finds the April 2010 statement the most credible and probative account by the Veteran with respect to symptoms experienced since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The record does not contain any post-service medical records prior to 2010 indicating treatment for or complaints indicative of hearing loss in the right ear. Therefore, the Veteran's April 2010 statement, together with the lack of evidence of treatment or complaints in service or at any time prior to 2010, establishes by a preponderance of the evidence that there has not been a continuous symptoms of right ear hearing loss since service. The only remaining issue with respect to service connection, then, is whether the Veteran's current right ear hearing loss is etiologically related to in-service acoustic trauma. Shedden, 381 F.3d at 1167. The Board obtained opinions from two different VA examiners on that issue. The report of the April 2010 VA examination, as discussed above, indicates that the Veteran had normal hearing in his right ear upon discharge from active duty. The April 2010 report also notes that the Veteran's "post military exposures to high risk noise were positive for both his occupation and recreational interests." The examiner stated: "an opinion of less likely than not is provided lowering the probability that military acoustic trauma affected the R[ight] ear." In order to resolve any ambiguities in that concluding statement, the VA obtained a clarifying opinion. The second VA examiner determined, as noted in her August 2010 report that the decrease in hearing in the Veteran's right ear did not result from acoustic trauma during military service. The examiner opined that the post-service decrease in hearing was, instead, "most likely secondary to post military noise exposure and aging effects. Any decrease in auditory thresholds after his 1970 separation exam can be attributed to post military conditions." In explaining the basis for her conclusion, the second examiner again noted the absence of right ear hearing loss in service and the presence of post-military noise exposure. While the Veteran's representative has correctly noted that hearing loss at separation is not required to demonstrate service connection, the VA examiners did not base their decisions or conclusions solely on the absence of hearing loss at separation from service. Instead, as noted above, the examiners both placed considerable emphasis on the post-military noise exposure experienced by the Veteran as well as on the ageing process. The Board finds that the VA examination opinions taken together are adequate and, further, finds their reasoning and analysis of significant probative value. Barr, 21 Vet. App. at 311-12. Despite these medical opinions, the Veteran has emphasized his own "sincere...belief that his hearing loss is a result of his exposure to small arms fire and grenades while stationed in Viet Nam." See January 2013 Informal Hearing Presentation. The Board does not doubt the Veteran's reported experiences in Vietnam nor that he sincerely believes those experiences caused his right ear hearing loss. However, while the Veteran is competent to report (1) symptoms observable to a layperson (e.g. decreased hearing); (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay Veteran competent to render opinions regarding diagnosis or etiology nor need the Board give any probative weight to bald assertions by a lay Veteran regarding diagnosis or etiology of a medical condition. Davidson, 581 F.3d at 1316; King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Board finds that the etiological opinions of this Veteran, who lacks training in a medical profession and whose opinions address a complex acoustic and medical history which includes post-military exposure to high-risk noise and delayed onset of symptoms in his right ear, are not competent evidence of the etiology of the Veteran's right ear hearing loss. Jandreau, 492 F.3d at 1377; see also Stefl v. Nicholson, 21 Vet. App. at 124. Because the Board finds that the lay Veteran is not competent to provide etiological opinions with respect to his right ear hearing loss and the Veteran has not submitted or identified any other competent medical evidence regarding etiology, the VA examiners' opinions are the only competent and probative evidence before the Board regarding the causal relationship between the Veteran's current right ear hearing loss and his active service. Even if the Veteran were competent to provide a medical nexus opinion, the Board finds persuasive the VA examiners' opinions that there is no causal nexus between the in-service acoustic trauma suffered by the Veteran and his current right ear hearing loss. Accordingly, after considering the evidence of record in its entirety, the Board concludes that the preponderance of the evidence is against the claim for service connection for right ear hearing loss. Thus, the benefit of the doubt rule does not apply, and the Veteran's claim is denied. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for hearing loss in the right ear is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs