Citation Nr: 1330047 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-07 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from July 1977 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran seeks service connection for his hearing loss. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. The issues of arthritis, chronic headaches, and chronic neck pain, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate that the Veteran has a right ear hearing loss disability as defined by VA. 2. The competent medical evidence demonstrates that the Veteran has a left ear hearing loss disability as defined by VA. 3. There is no competent and credible evidence that the Veteran's left ear hearing loss disability is related to service or was diagnosed within one year of his February 1979 service discharge. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran of any information and 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter sent to the Veteran in April 2010, addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in December 2010. Therefore, VA fulfilled its duty to notify. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. The claims file contains the Veteran's treatment from the University of New Mexico Hospital in 1987 and 1990, and all relevant VA treatment records. The Veteran has not identified any treatment records aside from those that are already of record, nor is there any indication that the Veteran has sought additional treatment relevant to the instant appeal. In September 2010, VA provided the Veteran with an audiology examination and obtained a medical opinion addressing whether any current hearing loss had its onset during or was caused by active service. The audiology examination, and opinion is adequate, as the examination report shows that the examiner, considered the Veteran's relevant medical/military/occupational history, conducted a physical examination with testing and provided reasoned analysis to support the medical opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Law & Regulations In his January 2010 claim of service connection for hearing loss, the Veteran stated that he was exposed to excessive levels of noise during live fires of mortar rounds while training. He related that the noise and concussion of the rounds firing, and being so close to the mortar tube, i.e. gunner, caused an unsafe condition and had affected his hearing since. In March 2010, the Veteran submitted a statement outline the noise he experienced in service. He stated that he served as a gunner, assistant gunner and "ammo barrer". He related that this put him in close proximity of 81 mm round fire. He stated he was involved in "fire for effect". He stated that this and other live fires caused damage to his hearing. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is eligible for service connection through a presumptive or direct basis. Service connection for sensorineural hearing loss will rebuttably be presumed if it is manifest to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); see also M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."). Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Service connection on a direct basis may 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). In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent in certain situations to provide a diagnosis of a simple condition such as hearing loss, though, the Veteran is not competent to provide evidence as to more complex medical questions such as his degree of hearing loss based on decibels and Hertz frequencies, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367 For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. CONTINUE ON THE NEXT PAGE III. Analysis 1. Current Disability The Veteran does not have a hearing loss disability of his right ear for VA purposes. The Veteran underwent an audiology VA examination in September 2010. The September 2010 audiology VA examination is the only audiology examination of record. The Veteran's right ear auditory thresholds were, 20, 25, 25, 30, 25 decibels at 500, 1000, 2000, 3000, or 4000 Hertz, respectively. The audiologist noted that the Veteran's right ear is not disabled pursuant to VA regulations. See 38 C.F.R. § 3.385. The September 2010 exam revealed normal speech recognition scores using the Maryland CNC Test, finding right ear hearing at 94%. Based on the results of the September 2010 exam, the Veteran is unable to fulfill the element of current disability with regards to his right ear, as he does not meet the criteria for hearing loss under 38 C.F.R. § 3.385. Thus, the Veteran is not entitled to service connection for his right ear. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran does, however, have a hearing loss disability of his left ear. The Veteran's left ear auditory thresholds at the September 2010 examination shows thresholds of 45 and 40, decibels at 3000 and 4000 Hertz, respectively. These threshold levels qualify as a hearing loss disability under 38 C.F.R. § 3.385. The Veteran fulfills the current disability element for service connection. 2. In-Service Injury The evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. This injury is consistent with the Veteran's Military Occupational Specialty (MOS) as an indirect fire infantryman, found on Veteran's Form DD 214. Furthermore, the Veteran provided specific instances during his service where he was in close proximity to 81 mm round during fire for effect exercises (described by the Veteran as artillery barrages). The Veteran fulfills the in-service injury element for bilateral hearing loss. 3. Nexus The Board observes that there is no competent medical evidence showing that the Veteran was diagnosed as having sensorineural hearing loss within one year of his service discharge. Therefore, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309. The determinative question in the instant case is whether the Veteran's current hearing loss is related to service, including the acoustic trauma. This is a medical question and requires specialized medical training in order to address. The claims file contains only one medical opinion concerning the etiology of the Veteran's hearing loss. In September 2010, a VA audiologist examined the Veteran and opined that the Veteran's bilateral sensorineural hearing loss is not caused by or a result of occupational noise exposure while the Veteran was on active military duty. He found that the Veteran's bilateral sensorineural hearing loss is most likely caused by or a result of post-military occupational noise exposure. The opinion was based on his review of the medical/service records, including the claims file. In giving his opinion, the audiologist took into consideration that the Veteran had no pre-military noise exposure, military noise exposure, post military noise exposure, and no recreational noise exposure. The audiologist also took into consideration the Veteran's July 1977 enlistment and January 1979 discharge audio examination which was within normal limits, bilaterally; and that the Veteran had no significant puretone thresholds shifts noted from his entrance to his separation hearing test, bilaterally. Moreover, the examiner related that he reviewed the Veteran's submission of records, including the Veteran's resume showing 30 years of construction which involved the Veteran having experience as a general contractor, plumber, HVAC tech, pipe fitter, carpenter, electrician and welder (certified). Lastly, he stated that he took into consideration the physical findings on examination showing bilateral sensorineural hearing loss and tinnitus. The Board finds that the September 2010 opinion by the VA audiologist is probative in determining the etiology of the Veteran's hearing loss, specifically of the left ear. It is clear that the audiologist's rationale for the opinion was based on all of the applicable facts, a complete history, including noise history, and medical findings, including no significant puretone threshold shifts between the Veteran's service entrance examination and discharge examination. The Board notes that while the Veteran in a March 2011 statement relates that his careers after discharge were mostly managerial, he does not state that he did not have any occupational noise exposure after service. The examiner based his opinion, at least in part, on the Veteran's resume which showed the Veteran's various occupations. There is no argument showing that the Veteran did not have experience in the occupations as noted by the examiner. As such, his opinion was based on an accurate factual basis concerning the Veteran's occupational history. The Board notes that the Veteran asserts that his hearing loss is related to the noise exposure he had in service and that the audio threshold shifts in service were supportive of his assertion. The Board finds that the Veteran is not competent to give opinions as to the etiology of his hearing loss or to discuss the significance of any threshold shifts. In this regard, the Veteran has not demonstrated that he has specialized training or knowledge when it comes to diagnosis or etiology of audiological conditions. The Veteran submitted what appears to be part of his research highlighting search terms which were noted in a few incomplete lines in an article from JAMA, May 1988. The heading was The Centers for Disease Control Vietnam Experience Study, Health Status of Vietnam Veterans: II. Physical Health. The excerpt/search results contained the following: ". . . have high frequency hearing loss than were non-Vietnam veterans. . .the two groups in bilateral hearing loss were greatest among men with . . .men, armored vehicle crewmen, combat engineers, and artillery crewmen26. Brown JR: Noise-induced hearing loss sus?? tained during land operations". The Board finds that this submitted evidence lacks probative value in supporting the Veteran's claim that his hearing loss is related to service. The Veteran has never alleged Vietnam service and there is nothing in the record to show that he served in Vietnam. Additionally, the Veteran has not submitted the complete article. Even if the complete article was submitted, the Board notes that a general article that does not speak to the specific facts of the Veteran's circumstances would be of little probative value, especially in light of a medical opinion which addresses the facts of the Veteran's case in finding that there was no relationship between the Veteran's current hearing loss and acoustic trauma in service. See Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Specifically, the Board finds that to the extent that the Veteran has submitted this evidence for the purpose of showing a connection between his current hearing loss and exposure to artillery fire in service to lack probative value in light of the total evidence of record, including the VA opinion. In sum, the competent and probative medical evidence fails to show that the Veteran's sensorineural hearing loss developed within one year of service discharge or that there is competent and probative evidence showing that hearing loss is related to service. As such, service connection for hearing loss is not warranted on any basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). Therefore the Veteran's claim for service connection for hearing loss and is denied. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs