Citation Nr: 1330196	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  10-47 789	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for hearing loss.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Vecchiollo



INTRODUCTION

The Veteran served on active duty from September 1970 to April 1972.  He had 10 years of subsequent claimed service in the National Guard.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2011.  A transcript of the proceeding is of record. 

FINDING OF FACT

Although the Veteran has a current diagnosis of hearing loss, as well as credible evidence of noise exposure during his military service, the most probative evidence of record indicates the Veteran's current hearing loss disability is not related to his military service.


CONCLUSION OF LAW

The requirements for establishing service connection for hearing loss have not been met.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, in a letter dated in December 2008, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  

Regarding the duty to assist, VA has obtained service treatment records (STRs), post service medical records, Social Security Administration (SSA) records, assisted the appellant in obtaining evidence, afforded the appellant a physical examination, obtained a medical opinion, and afforded the appellant the opportunity to give testimony before the Board.  The Veteran requested a hearing before a hearing officer at the RO which was never conducted.  However, at his videoconference hearing, he stated he no longer wanted an RO hearing.  

The Veteran has been afforded a hearing before the undersigned VLJ in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ asked specific questions directed at identifying in-service incidents and complaints related to the claimed disability, as well as the existence of relevant additional evidence.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing.  As such, the Board finds that no further action pursuant to Bryant and 38 C.F.R. § 3.103(c)(2) is necessary. 

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  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 cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall 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.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

For purposes of applying the laws administered by VA, impaired hearing only will be considered a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these 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.  "[W]hen 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).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id. at 157.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The audiological evaluation on a pre-induction examination in November 1969 found the following puretone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
15

20
LEFT
15
10
15

5

An undated audiogram revealed the following puretone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
10
10

35
LEFT
15
10
10

35

The report noted mild high frequency hearing loss secondary to acoustic trauma.

The audiological evaluation on discharge examination in January 1972 found the following puretone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
10

30
LEFT
25
20
10

30

On a private examination report of July 1994, the Veteran complained of ringing in the ears with some decrease in hearing.  

The Veteran underwent a VA examination in August 2010.  The audiological evaluation found speech recognition scores of 96 percent in the right ear and 94 percent in the left ear, and the following puretone thresholds, in decibels: 


HERTZ

500
1000
2000
3000
4000
RIGHT
25
25
45
65
65
LEFT
25
20
45
70
75

The Veteran contends that his current hearing loss is the result of acoustic trauma he experienced during his work as a heavy equipment mechanic while serving in an artillery unit in service.  He maintains that he already showed significant hearing loss in service as demonstrated by the worsening audiological evaluations conducted in service.  He also notes that he experienced similar acoustic trauma while subsequently serving in the National Guard for 10 years.  

The medical evidence shows that the Veteran's hearing loss did not rise to the level of a hearing loss disability pursuant to 38 C.F.R. § 3.385 during service.  However, the current findings reveal hearing loss disability according to that section.  Thus, the question then becomes whether this current hearing loss disability is related to service.  

While the Veteran also contends that his current hearing loss is related to noise exposure during active service and National Guard service, the Board finds the most probative evidence is against such contention.  Specifically, after considering the medical and occupational histories in service and since, and examining the Veteran, a VA audiologist in August 2010 and September 2010 concluded the Veteran's hearing loss was less likely as not (i.e. less than a 50/50 probability) related to his military noise exposure.  The examiner considered the Veteran's active service and the Veteran's reported 10 years of reserve service.  The audiologist noted the bilateral shift in the 4000 Hertz thresholds on audiograms in service, but also noted that the Veteran experienced significant post-service noise exposure while working as an auto mechanic, shooting, and using power tools.  The audiologist supported the conclusion by stating that the medical literature does not support delayed-onset hearing loss.  In a September 2010 addendum, the examiner provided the specific medical literature supporting that conclusion.  The examiner noted that, in Humes, Joellenbeck, and Durch (2006), Noise and Military Service: Implications for However, Loss and Tinnitus, "[t]he committee's 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."

This examiner's opinion was based on reasonable medical principles that are supported by the evidentiary record and citation to medical authority, and contained discussion of the underlying rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  There is no competent medical opinion to the contrary.

To the extent that the Veteran himself believes that his current hearing loss disability is connected to noise exposure during active duty and during reserve service, there is nothing in the record establishing that the Veteran has the specialized training sufficient to render such an opinion.  In this regard, medical testing is required to determine the presence of hearing loss disability, and the etiology of such hearing loss requires medical expertise to determine, especially since hearing loss can have a variety of causes.  Moreover, whether the symptoms the Veteran claims to have experienced in service or following service are in any way related to his current hearing loss is a matter that requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  Accordingly, the Veteran's own opinion as to the diagnosis or etiology of his current hearing loss is not competent medical evidence.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  Here, the Board finds the opinion of the VA examiner to be of significantly greater probative value than the Veteran's lay assertion in this matter.  

In sum, hearing loss disability was not shown during service or for many years thereafter, and the most probative evidence of record indicates the Veteran's current hearing loss is not related to service.  Accordingly, the preponderance of the evidence is against the claim and service connection is denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

The claim for service connection for hearing loss is denied.



____________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs