Citation Nr: 1330287 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 04-42 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from October 1961 to August 1962. The issue on appeal was most recently before the Board in October 2008. The Veteran appealed the Board's October 2008 denial to the United States Court of Appeals for Veterans Claims (Court). By decision dated in September 2010, the Court set aside the Board's October 2008 denial and remanded this matter to the Board. This matter was remanded in June 2011 for further development. A review of the record shows that the RO has complied with all remand instructions by obtaining VA medical opinions in December 2011 and June 2012. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before a Decision Review Officer (DRO) in November 2005. He also testified at a Board hearing at the RO in December 2007. Transcripts are of record. In a February 2013 letter, the Veteran's representative requested 60 days extension to submit additional evidence, and subsequently submitted April 2013 and June 2013 letters. The time period has now lapsed. FINDING OF FACT Bilateral hearing loss was not manifested during the Veteran's active duty service or for many years thereafter, nor is bilateral hearing loss otherwise related to such service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, 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. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 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 may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in May 2004. The RO provided the appellant with additional notice in March 2006, subsequent to the initial adjudication. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the March 2006 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in August 2006 and November 2006 supplemental statements of the case (following the provision of notice in March 2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service treatment records; reviewed Virtual VA files, VA and private treatment records; obtained Social Security Administration (SSA) records; assisted the Veteran in obtaining evidence; and afforded the Veteran VA examinations (January 2005, July 2006, April 2008 and August 2011); and obtained addendum opinions in December 2011 and June 2012. For reasons hereinafter explained, the Board finds that there is now adequate medical evidence to allow for fully informed appellate review. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The issue before the Board involves a claim of entitlement to service connection for bilateral hearing loss. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). Sensorineural hearing loss (organic disease of the nervous system) may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). For the purpose of applying the laws administered by VA, impaired hearing will be considered 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. 38 C.F.R. § 3.385. The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Since VA examinations from January 2005, July 2006, April 2008, August 2011, December 2011 and June 2012 reveal auditory thresholds of greater than 40 decibels for several of the relevant frequencies in each ear, the only remaining question is whether the current hearing loss is related to the Veteran's service. Service treatment records show that there were no complaints of, treatments for, or diagnosis of hearing loss. A December 1960 report of medical examination revealed that the Veteran's ears and auditory acuity were clinically evaluated as normal; and audiometric measurements revealed 0 decibels in frequencies of 500, 1000, 2000, and 10 decibels in frequency of 4000. A June 1962 separation examination also revealed that his ears and auditory acuity were clinically evaluated as normal. Audiometric measurements revealed 0 decibels in frequencies of 500, 1000, 2000, and 4000. In his contemporaneous medical history, the Veteran did not indicate whether or not he experienced any hearing loss and checked the appropriate box to deny ear trouble; and when asked to state his present health at the time in his own words, the Veteran stated "fine health as far as known." By letter received in October 2006, the Veteran questioned the adequacy of the December 1960 audiological examination conducted in Fort Sill, Oklahoma by stating that he went into a room and repeated about five words. The Veteran continued that the test would not detect hearing problems that he had. In a letter received in June 2008, the Veteran implied that the December 1960 audiological examination was inadequate. However, the Board notes that there is nothing of record to support the Veteran's contention. The findings for the most part were consistent with the June 1962 separation examination. In the letter received in October 2006, the Veteran asserted that the June 1962 examination did not occur and stated that he never saw any doctor or medical personnel. In support of his claim, the Veteran noted that the June 1962 examination provided that his hair was blond when it was actually brown. In a letter received in June 2008, the Veteran insisted that the hearing test of June 1962 was never done, and that it was a forged document. Again, the Veteran referred to the blond hair notation and submitted a photograph of himself to show otherwise. Nevertheless, the Board notes that the June 1962 medical history reveals that the Veteran had certified by signature that he had reviewed the information supplied by him and that it was true and complete to the best of his knowledge. Post treatment records show that several audiological tests were conducted at the Campbell Soup Company--the Veteran's former place of employment. The first test was conducted in August 1976. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10/10 20 35 65 LEFT 25 15/15 25 50 75 The box to describe the Veteran's ear protection and type was marked with a dash. In the second test also conducted in August 1976, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10/10 15 30 70 LEFT 15 10/10 15 45 70 The box to describe the Veteran's ear protection and type was marked with a dash. In a September 1978 test, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25/25 25 25 50 80 LEFT 20 15 25 60 75 In the box to describe the Veteran's ear protection and type, the following was provided: "Ear plugs when necessary." When the Veteran was afforded a VA examination in January 2005, he reported that he was in artillery and then worked as a mechanic while in service. He reported exposure to gunfire during military service and later at a can factory for four years where he was exposed to loud noises. He further stated that he was required to wear hearing protection at the factory and that he used to hunt for recreation. After review of the Veteran's treatment records and examination of the Veteran, the VA examiner diagnosed mild sensorineural hearing loss at 500 to 1500 Hz, moderately severe to severe sensorineural hearing loss at 2000 to 3000 Hz, profound sensorineural hearing loss at 4000 Hz in the right ear; and mild sensorineural hearing loss at 500 Hz, within normal limits at 1000 to 1500 Hz, moderately severe to severe sensorineural hearing loss at 2000 Hz to 3000 Hz, and profound at 4000 Hz in the left ear. According to the VA examiner, because the Veteran's hearing was not tested prior to military discharge, his hearing sensitivity at that time is unknown. She concluded that there was insufficient information available to determine if the Veteran's hearing loss was caused by military service. A January 2006 private medical record from William H. Rotzler, M.D. reveals that the Veteran was seen in December 2005. After reviewing the Veteran's audiologic records provided in 1976, 1978 and December 2005, and after considering the Veteran's statements that he was exposed to loud noise without hearing protection while in service, Dr. Rotzler opined that this was the cause of the Veteran's hearing loss. In other words, Dr. Rotzler opined that the Veteran's current hearing loss is related to service. When the Veteran was afforded another VA examination in July 2006, he reported that he worked 10 weeks at an artillery school and then was reassigned to track vehicle mechanic. He reported that his military noise exposure included big guns, rocket launchers, rifle range and engine noise. He continued that he was commanded not to wear hearing protection. Post military service, the Veteran worked in a few machine shops where he reported exposure to machine noise and stated that he worked for a soup company factory where he was exposed to noise from machines. It was unclear to the examiner as to the length of exposure to any post military employment since the Veteran was vague regarding the dates. The examiner noted that the Veteran did report wearing ear plugs while working at a factory. And the Veteran further reported that he used to deer hunt. The VA examiner diagnosed sensorineural hearing loss that was mild at 500 to 1000 Hz, moderately severe 2000 to 3000 Hz and profound at 4000 Hz for the right ear; and moderate sensorineural hearing loss at 500 Hz, within normal limits at 1000 Hz, moderately severe 2000 Hz and severe at 3000 to 4000 Hz. Since the Veteran's hearing was within normal limits two months prior to separation and that no reports of any hearing deficits were noted at separation, he said it is less likely than not that the Veteran's current hearing loss is related to military noise exposure as a track vehicle mechanic. A private audiological record from Denton Hearing Health Care shows that the Veteran was seen by Judith A. Caudle, Au.D. in December 2007. The Veteran reported exposure to excessive noise levels in service while in artillery school from heavy artillery that included 105 Howitzers. He stated that he did not wear hearing protection at the time. He further reported working as a machinist post service with very low noise exposure and stated that he had no noisy hobbies. Audiologist Caudle stated that she reviewed military service records made available to her and found documentation of normal hearing threshold levels at the frequency test. And based upon lack of frequency specific hearing information at 3000 Hertz and 6000 Hz upon separation from service, she opined that it was at least as likely as not that the Veteran's hearing loss was caused by or contributed by excessive noise exposure while in service. In February 2008, the Board remanded the case for additional development noting that the VA examination in January 2005 resulted in a report by the examiner that there was insufficient evidence to offer an opinion as to causation. The Board continued that when the Veteran was afforded another VA examination in July 2006, the VA examiner opined that it is less likely than not that the Veteran's current hearing loss is related to military noise exposure as a track vehicle mechanic. However, at one point in the report it appeared to indicate that the claims file was reviewed, but at another point it appeared to say that only service medical records (and not private and VA records) were reviewed. At the December 2007 Board hearing, the Veteran testified that he believed the July 2006 VA opinion was inadequate in that it was not based on full review of the record. The Board commented that the lack of clarity as to the records actually reviewed by the July 2006 VA examiner is significant in this case since the record does include private medical reports which appear to offer opinions favorable to the Veteran. In order to be able to assign probative value to the various items of medical evidence, the Board believed that further development was necessary to ensure a fully adequate medical opinion as to causation. Pursuant to the Board's February 2008 remand instructions, the Veteran was afforded another VA examination in April 2008. After examining the Veteran and reviewing the entire claims file, the diagnosis was normal to profound sensorineural hearing loss. The VA examiner provided in pertinent part that a December 1960 examination revealed normal hearing acuity bilaterally in service, and a June 1962 separation examination also revealed normal hearing acuity. The VA examiner continued that because the Veteran's hearing acuity was normal 2 months prior to discharge, it is less likely as not that the current bilateral hearing loss is related to the Veteran's military service. As to the opinion expressed by Audiologist Caudle, the examiner remarked that she did not take into consideration the hearing examination that was performed 2 months prior to the Veteran's discharge from service. As to the opinion expressed by Dr. Rotzler, who acknowledged normal hearing acuity upon discharge, the VA examiner noted that the opinion considered hearing loss incurred over 40 years post-discharge. The VA examiner stated that insufficient evidence exists to agree with the opinions expressed by Audiologist Caudle and Dr. Rotzler. As noted by the Court in September 2010, the April 2008 VA examination is inadequate for several reasons. First, the VA examiner incorrectly interpreted Dr. Rotzler's statement in January 2006 that the pure tone evaluation in 1962 "did not reveal any hearing loss at that time." The Court noted that Dr. Rotzler did not acknowledge more than the fact that the hearing test did not reveal anything positive or negative. Second, Dr. Rotzler noted evidence of significant hearing loss in hearing tests done as early as 1976, which is 14 years and not 40 years post discharge as the VA examiner had stated. The Court found that since the VA examiner's opinion was based on two inaccurate factual premises, the April 2008 VA examination was inadequate. Lastly, the VA examiner did not provide an opinion as to whether the Veteran's in-service acoustic trauma could have initiated progressive hearing loss. Per the Board's June 2011 remand, the Veteran was afforded a VA examination in August 2011. On the authorized audiological evaluation in August 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 65 75 100 LEFT 30 25 65 90 100 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 in the left ear. The VA examiner diagnosed bilateral sensorineural hearing loss (in the frequency range of 500 to 4000 Hz). The VA examiner checked the appropriate box to indicate that hearing loss is less likely as not caused by or a result of an event in military service. The VA examiner noted that hearing acuity on enlistment in March 1960 was within normal limits bilaterally. She noted that the Whispered Voice Test involves a subjective assessment of hearing impairment using spoken and/or whispered words without visual cues, and noted it is insensitive to high frequency losses, providing only a gross indication of hearing impairment and as such is not reliable evidence of normal hearing or hearing impairment. She noted a frequency specific audiogram completed 9 months after enlistment (12/07/60), however, documents hearing acuity within normal limits bilaterally (0 dB at 500 to 2000 and 10 dB at 4000 Hz). A discharge audiometric evaluation shows hearing acuity within normal limits (0 dB at 500 to 2000 and 10 dB at 4000 Hz) without significant threshold shifts. The examiner noted no documentation of hearing loss during service or within one year of discharge. Additional audiograms in the claims file (August 1976, September 1978 and 2007) report bilateral high frequency hearing loss obtained more than 14 years after service. In a December 2011 addendum opinion, the VA examiner noted that Dr. Rotzler's opinion reports an enlistment audiogram that reveals normal hearing based on whispered voice tests, but does not include a threshold specific audiogram completed 9 months after enlistment (December 1960) which documents hearing acuity within normal limits 500 to 4000 Hz bilaterally. He reports a 1962 puretone evaluation revealing no hearing loss, but reports no additional testing done at time of discharge. The 1962 purtone evaluation mentioned was the Veteran's discharge audiogram. A comparison of separation audiogram with initial threshold specific audiogram (December 1960) reveals both audiograms are within normal limits from 500 to 2000 Hz and 4000 Hz audiograms reviewed and opinion by Dr. Rotzler were completed in 1976 and 1978, which is 14 to 16 years after active duty. With regard to audiologist Caudle's opinion, the VA examiner noted that she opined that it is at least as likely as not caused by excessive noise exposure during service based on service dates of 1960 to 1964, no hearing test at the time of discharge, the lack of frequency specific hearing information at 3000 and 6000 Hz upon separation from service and Veteran's report of tinnitus during artillery training. The Veteran received whispered voice enlistment audiometric examination in March 1960, a threshold specific audiogram (December 1960) and a separation audiogram (June 1962). Review of audiometric information obtained thorough active duty reveals no significant threshold shifts bilaterally. The lack of frequency specific hearing information at 3000 and 6000 Hz is alluded to as an indicator of possible hearing loss due to artillery training. However, audiometry thresholds at 3000 Hz is absent on both initial threshold specific (December 1950) and separation (August 1962) audiometric examinations and 6000 Hz is not included in the rating frequencies of 500 to 4000 Hz. The VA examiner concluded that based on the evidence, it is less likely than not that the Veteran's current hearing acuity is related to military service. The claims file was forwarded to a VA examiner in June 2012. On the authorized audiological evaluation in June 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 65 75 95 LEFT 35 30 70 95 100 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The VA examiner diagnosed sensorineural hearing loss, and marked the appropriate box to indicate "no" when asked if it is at least as likely as not caused by or a result of an event in military service. He concurred with the December 2011 opinion. After reviewing the evidence both for and against the appellant's claim, the Board finds the August 2011 and December 2011 VA medical opinions more probative than Audiologist Caudle and Dr. Rotzler's medical opinions. The aforementioned VA examinations were more thorough and detailed, and discussed why the medical opinions in support of the Veteran's claim were not persuasive. Further, the VA examiner who rendered the August 2011 and December 2011 medical opinions had access to the Veteran's entire claims file. Therefore, the Board affords considerably more weight to the VA opinions than to the statements contained in Judith Caudle and Dr. Rotzler's opinions. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board acknowledges the June 2013 letter from the Veteran's representative who asserted that the December 2011 VA examination is inaccurate because the opinion is based on an inaccurate factual premise. He stated that the December 1960 audiogram noted mild hearing loss at 4000 and 8000 Hz. However, the audiogram reveals a reading of only 10 at 4000 Hz and there is no diagnosis of mild hearing loss. The representative also asserted that the December 2011 directions to the examiner strongly implied a negative relationship. The examiner was direct to "specifically state that the Veteran's hearing loss and tinnitus were not caused by acoustic trauma during service." However, the Board notes that the VA examiner was the same one who already provided negative nexus opinion in August 2011. In the context of this case, the RO's instructions sought to clarify the negative opinion previously rendered by this same examiner, not to influence the examiner's opinion. Thus, the Veteran has not been prejudiced as a result of such instruction. Further, the representative asserted that the June 2012 VA examiner's opinion was inadequate since there was no discussion of the December 1960 audiogram or any service treatment records. The Board notes that adequate opinions were provided, but by a different examiner in August 2011 and December 2011. The Board acknowledges the Veteran's assertions that the currently diagnosed hearing loss was caused by in-service noise exposure-being assigned to an artillery unit as a mechanic. In a notice of disagreement received in October 2004 and testimony provided at a November 2005 DRO hearing, he listed weapons used while in service and noted that he was not issued any hearing protection. In the notice of disagreement received in October 2004, he concluded that he could not fire a 105 Howitzer like he did without developing hearing loss. In a substantive appeal received in December 2004, he stated that he was not allowed to protect his ears without being cursed out or being assigned on extra duty. The Veteran is competent to testify as to the symptoms of his disability, but he is not competent to render a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs