Citation Nr: 1328998	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  10-14 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for right ear hearing loss.  


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

P. Childers, Counsel



INTRODUCTION

The Veteran served on active duty from April 1988 until his retirement in April 2008.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for a sinus disorder, a low back disorder, right ear hearing loss, and a right knee disorder.  

In April 2011, the Veteran and his spouse testified before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.

In a March 2013 decision, the Board granted service connection for rhinitis and remanded claims of service connection for a low back disorder, right ear hearing loss and right knee disability for further development, including providing the Veteran VA examinations.  No further action to ensure compliance with the Board's remand directives is required.  Stegall v. West, 11 Vet. App. 268 (1998).  In a July 2013 rating decision, VA granted service connection for degenerative joint disease of the right knee and for back strain.  Thus, those issues are no longer on appeal.


FINDING OF FACT

The Veteran's does not have right ear hearing loss for VA compensation purposes.


CONCLUSION OF LAW

A current right ear hearing loss disability as defined by VA regulation is not found.  38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. § 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

Under 38 U.S.C.A. § 5103(a), VA 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.  Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The notice requirements were accomplished in a letter dated in December 2008.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The Veteran was apprised of the information and evidence needed to substantiate his claim of service connection (including the information and evidence to be submitted by him and the information and evidence to be obtained by VA); of how disability evaluations and effective dates are assigned; and of the type of evidence that impacts those determinations.  

As regards VA's duty to assist, evidence necessary for resolution of this appeal has been obtained.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records.  The Veteran was also accorded VA audiology examinations in January 2009 and April 2013, during which the examiners reviewed the claims file, discussed the Veteran's history and symptoms with the Veteran, and conducted requisite testing; and the reports of these examinations are sufficiently detailed as to permit fair and equitable consideration of the merits of this matter.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  The Board finds that the VA audiology evidence is adequate and VA has fulfilled its duty to assist.  

In addition, in April 2011 the Veteran testified before the undersigned Veterans Law Judge.  During that hearing the Veterans Law Judge explained the issue and asked the Veteran questions to ascertain the nature of any in-service events and symptoms.  The Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claim.  The Veteran has not suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claim was identified by the Veteran and has been obtained.  Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings).  

As noted above, the issue of service connection for right ear hearing loss was remanded in March of this year.  To the extent necessary the AMC has complied with the Board's remand directives regarding the issue of right ear hearing loss.  A current disability is not present as determined by VA examinations.  

In conclusion, the Board finds that the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so.  Accordingly, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran; and does not prohibit consideration of this matter on the merits.  

II.  Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).  For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). 

Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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; see also Palczewski v. Nicholson, 21 Vet. App.  174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).  

Service connection may only be granted if claimed hearing loss is of sufficient severity to be considered a disability for VA purposes.  Whether the Veteran meets the criteria for service connection for a hearing disability loss is based on mechanical application of results of audiometric examination to the definition provided by the law.  The Veteran's lay statements regarding hearing acuity are credible evidence that the Veteran perceives a subjective hearing loss, but the Veteran's lay statements are not competent evidence which establishes that the Veteran's hearing acuity meets the definition of hearing loss disability set by law.  See, e.g, Lendenman v. Principi, 3 Vet. App. 345 (1992).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Facts 

In-service medical records include the reports of numerous audiometric evaluations.  Audiology testing during the Veteran's December 1987 enlistment examination found right ear hearing thresholds of 5, 0, 0, 5, and 20 at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz.  Periodic testing during service found as follows:

April 1988 
Hertz
500
1000
2000
3000
4000
Right ear
5
-5
0
0
25

May 1989	
Hertz
500
1000
2000
3000
4000
Right ear
10
5
10
5
25

March 1993	
Hertz
500
1000
2000
3000
4000
Right ear
20
15
10
10
20

April 1993	
Hertz
500
1000
2000
3000
4000
Right ear
20
15
10
10
20

July 1993	
Hertz
500
1000
2000
3000
4000
Right ear
10
10
10
5
15

August 1997
Hertz
500
1000
2000
3000
4000
Right ear
5
5
10
0
25

March 1998	
Hertz
500
1000
2000
3000
4000
Right ear
0
0
0
5
0

May 1998	
Hertz
500
1000
2000
3000
4000
Right ear
0
0
0
5
0


June 6, 1998	
Hertz
500
1000
2000
3000
4000
Right ear
5
10
10
10
25

June 25, 1998	
Hertz
500
1000
2000
3000
4000
Right ear
10
5
10
10
20

January 1999
Hertz
500
1000
2000
3000
4000
Right ear
10
5
5
10
25

October 2000
Hertz
500
1000
2000
3000
4000
Right ear
5
0
0
5
25

January 2003
Hertz
500
1000
2000
3000
4000
Right ear
10
5
0
10
25

April 2004
Hertz
500
1000
2000
3000
4000
Right ear
10
5
0
10
30

April 2005
Hertz
500
1000
2000
3000
4000
Right ear
10
10
0
10
25

In April 2008 the Veteran separated from active duty service.

On VA audiology consult in January 2009, right ear hearing thresholds at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 5, 15, 10, 15, and 25, respectively; and the speech recognition score was 96 percent.  Diagnosis was "clinically normal."

On VA audiology examination in April 2013, right ear hearing thresholds at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 5, 15, 5, 20, and 25, respectively; and the speech recognition score was 96 percent.  Diagnosis was "normal hearing."

Analysis

The Veteran's right ear hearing acuity has not met VA criteria for a finding of disability at any time during the appeal period.  According to the evidence of record, right ear hearing acuity was well within normal limits at all times during service, as there was not a single finding of 40 decibels or greater at any of the tested frequencies 500 through 4000 Hertz; hearing thresholds of 26 decibels or greater in at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at any one time.  Post-service testing in January 2009 and April 2013 also show right ear hearing to be well within normal limits.  

In this regard the Board notes that while the Veteran is competent to state that his hearing acuity has decreased, the determination as to the presence of a hearing loss disability for VA compensation purposes is medical in nature; that is, it is not capable of lay observation since audiology testing is required.  And it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to make a diagnosis based on audiology testing.  For this reason, a hearing loss disability under 38 C.F.R. § 3.385 is not a simple medical condition that the Veteran as a lay person is competent to identify. 

Where, as here, the determinative question involves a medical diagnosis, not capable of lay observation or the claimed disability is not a simple medical condition, competent medical evidence is required to substantiate the claim.  And according to the competent medical evidence of record, the Veteran's right ear hearing acuity has not met the criteria for hearing loss disability as set out by 38 C.F.R. § 3.385 at any time during the appeal period.  As such, this claim must be denied.  See Palczewski v. Nicholson, 21 Vet. App. at 178-80; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 


ORDER

Service connection for right ear hearing loss is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs