Citation Nr: 1329557 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-12 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). FINDING OF FACT A bilateral hearing loss disability for VA compensation purposes was not manifest during active service or within the first post-service year and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in August 2009. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA examination reports, and the Veteran's statements and testimony in support of his claim. At his hearing in May 2011 the Veteran reported that he had not discussed any hearing problems with his private medical care providers in the years after service and that he did not believe he had undergone a hearing examination in association with his employment with the United States Postal Service beginning in 1974. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Sensorineural hearing loss is a chronic disease for presumptive service connection purposes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims (hereinafter "the Court"), however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. See 38 C.F.R. § 3.385 (2012). Once the requirements of 38 C.F.R. § 3.385 (2012) have been met and a present hearing "disability" under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. In particular, the Court has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al. eds., 1988). Even if a veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss to active military service. Id. at 158. The threshold for normal hearing is 0 to 20 decibels. Service treatment records dated prior to November 1, 1967, are presumed to use the American Standards Association (ASA) standard, rather than the current International Standards Organization - American National Standards Institute (ISO- ANSI) standard. Conversion to ISO-ANSI units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record shows that upon enlistment examination in September 1965 an audiological evaluation (presumed to use the ASA standard and converted to the ISO- ANSI standard) revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 10 LEFT 15 10 10 10 10 A November 1967 examination report noted audiological evaluation (presumed to use the ASA standard and converted to the ISO-ANSI standard) revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 -5 LEFT 15 10 10 15 5 A January 1969 separation examination report noted audiological evaluation (noted to have employed the ASA standard and converted below to the ISO-ANSI standard) revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 15 LEFT 15 10 15 20 15 Service treatment records are negative for complaint or treatment for hearing loss. In reports of medical history dated in September 1965, November 1967, and January 1969 the Veteran denied having or having ever had hearing loss. In statements and testimony provided in support of his claim the Veteran reported that he had been exposed to flight line aircraft noise without hearing protection during active service. He also reported that he had flown in transport airplanes that had very poor acoustics and were very noisy without hearing protection. He asserted he had been exposed to very high levels of aircraft noise during service that was far greater than any noise exposure he experienced after service associated with farming or carpentry work. He further noted that he began working as a rural mail carrier in 1974 with little daily communication, but that he was aware his hearing loss was a problem in the early 1970's. In a statement received by VA in September 2009 the Veteran's spouse recalled that she first noticed his loss of hearing in the 1970's. At his November 2009 VA audiology examination the Veteran reported in-service noise exposure from jets, flight lines, and cargo planes. He reported post-service noise exposure from carpentry, farming, and mail delivery. It was noted his hearing loss was first noticed 15 years earlier. On authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 50 55 55 LEFT 25 35 45 55 55 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 percent in the left ear. The examiner noted that a review of the claims file revealed the Veteran's hearing at enlistment and discharge was within normal limits. It was the examiner's opinion that the Veteran's hearing loss was less than likely the result of military service. As rationale for the opinion it was noted that there was no significant shift in either ear during military service. In an April 2010 addendum the examiner noted the enlistment audiology results were converted to ANSI standards and when compared to the 1969 separation examination results did not indicate a shift in hearing thresholds. The examiner also affirmed her November 2009 opinion. In a February 2011 addendum report a VA physician referred to Institute of Medicine sources noting that the "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." The physician found that with the Veteran's normal hearing upon discharge there was no evidence of hearing damage due to military noise exposure and that any worsening of hearing from the time of discharge to the current time was due to noise exposure after discharge. It was the physician's opinion that the Veteran's present hearing loss was not due to or aggravated by his military noise exposure. Based upon the evidence of record, the Board finds a bilateral hearing loss disability for VA compensation purposes was not manifest during active service or sensorineural hearing loss within the first post-service year and hearing loss is not shown to have developed as a result of an established event, injury, or disease during active service. The Veteran's statements as to noise exposure in service are credible and consistent with the circumstance of his service; however, the February 2011 VA medical opinion in this case is persuasive and based upon adequate rationale. Although the converted ASA standard audiology findings upon enlistment and separation examinations include a slight upward shift in hearing thresholds, it was the physician's opinion that since his hearing was within normal limits upon discharge the Veteran's subsequently manifest hearing loss disability was not due to his noise exposure during service. The opinion is shown to have been based upon examination findings, a thorough review of the evidence of record, and adequate consideration of the Veteran's statements. The Board further finds that the Veteran is competent to provide evidence as to observations and some medical matters, but that his statements are, at most, conclusory assertions of a nexus between his in-service noise exposure and his post-service hearing loss. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). Therefore, entitlement to service connection for bilateral hearing loss must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs