Citation Nr: 1330046 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-28 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hearing loss of the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1979 to January 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied an application to reopen a claim of service connection for bilateral hearing loss. In May 2010, a video conference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. By decision of the Board in November 2010, the Board found that new and material evidence had been received and reopened the claim. The issue was remanded for de novo review and further development of the evidence. In a July 2011 decision, the Board denied service connection for right ear hearing loss and remanded service connection for left ear hearing loss for an additional medical opinion. This was accomplished and the case has been returned for further appellate consideration. FINDING OF FACT The VA criteria for hearing loss of the left ear have not been demonstrated at any time during the appeal. CONCLUSION OF LAW Hearing loss of the left ear was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. A January 2007 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination, most recently pursuant to remand by the Board in August 2011. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2012). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease (as identified in 38 C.F.R. § 3.309(a)) in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for 90 days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Left Ear Hearing Loss The Veteran contends that service connection should be established for hearing loss in the left ear. It is pointed out that an audiometric study less than one year from separation from service showed a decibel (dB) level of 55 at 6000 hertz in the ear and that the Veteran has consistently stated that he has disabling hearing loss. Service connection for impaired hearing shall not be established unless the hearing status meets pure tone and speech recognition criteria. Hearing status shall be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 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. "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). After review of the record, the Board finds that the VA criteria for hearing loss of the left ear have not been demonstrated at any time during the appeal. In this regard, it is noted that review of the Veteran's STRs shows audiometric evaluations showing that the Veteran's hearing was within normal limits while he was on active duty. An audiometric evaluation for reserve purposes, dated in August 1983, shows normal hearing acuity in the Veteran's left ear, except for a level of 55 dB at 6000 hertz. Post-service treatment records include private and VA treatment records that include audiometric testing that was interpreted as showing sensorineural hearing loss in the left ear. An August 2006 VA outpatient record shows mild sensorineural hearing loss, without an inclusion of the audiometric testing report. Similarly, a private October 2006 treatment record includes an impression of moderate low frequency righting to normal hearing and hyperacusis bilaterally. A January 2007 VA treatment record shows that the Veteran's bilateral hearing was essentially normal, but that speech recognition in the left ear was 92 percent correct. A VA audiologic evaluation dated in August 2008 shows left ear hearing loss to be as follows: Hertz 250 500 1000 1500 2000 3000 4000 6000 8000 Left Ear 15 10 15 15 15 20 30 40 35 Speech recognition in the left ear was 100 percent correct. An audiometric evaluation was conducted by VA in February 2011. At that time air conduction threshold levels were shown to be as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 Left ear 15 15 10 10 15 35 35 Speech recognition in the left ear was 100 percent correct. An audiometric evaluation was conducted by VA in August 2011. At that time, pure tone threshold levels were shown to be as follows: Hertz 500 1000 2000 3000 4000 6000 8000 Left Ear 20 20 20 10 25 25 25 The examiner certified at that time that speech discrimination scoring was not appropriate for this Veteran because of language difficulties, cognitive problems, and inconsistent speech discrimination. This made combined use of puretone average and speech discrimination scores to be inappropriate. The examiner went on to state that any demonstrated hearing loss was not related to service, as the Veteran had not met the VA criteria for hearing loss in the left ear. In the absence of proof of a current disability there is no valid claim of service-connection. See Brammer v. Derwinski, 3 vet. App. 223, 225 (1992). Review of the record fails to show that the Veteran has met the VA standards for hearing loss in the left ear at any time, except for the January 2007 speech recognition score of 92 percent. The VA examiner in August 2011 discounted this as a relevant figure and there is no medical opinion to the contrary in the record. See Obert v. Brown, 5 Vet. App. 30 (1993) (The Board may not reject medical opinions based on its own medical judgment.) Accordingly, the record does not demonstrate hearing loss in the left ear that meets VA criteria and service connection is not warranted. ORDER Service connection for left ear hearing loss is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs