Citation Nr: 1331262	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  08-05 339	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office
in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. J. N. Driever



INTRODUCTION

The Veteran served on active duty from March 1961 to March 1963.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denied reopening a claim for service connection for right ear hearing loss on the basis that new and material evidence had not been submitted.  In a decision issued in November 2011, the Board reopened this claim and remanded it on its merits to the RO via the Appeals Management Center in Washington DC.   


FINDING OF FACT

The Veteran's right ear hearing loss did not have its onset during active service and is not related to an in-service disease, event, or injury.


CONCLUSION OF LAW

Right ear hearing loss was not incurred in or aggravated by service.  38 U.S.C.A. § 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act (VCAA)

Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

A.  Duty to Notify

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103.

These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC).  In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The RO provided the Veteran VCAA notice on his claim by way of letters dated in February 2007, May 2007 and December 2011.  The RO most recently readjudicated this claim in an August 2012 supplemental statement of the case (SSOC), curing any timing deficit associated with the December 2011 letter.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

The content of these letters reflects compliance with the pertinent statutory and regulatory provisions and case law.  Therein the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate it, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claim pursuant to this duty.  The RO also provided him all necessary information on disability ratings and effective dates in the event service connection is granted.  The RO identified the evidence it had requested and received in support of the Veteran's claim.  The RO identified the evidence that VA is responsible for obtaining and indicated it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the sources of it.  The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence.

The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004).  Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions.  


B.  Duty to Assist

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a) (West 2002), 5103A; 38 C.F.R. § 3.159(b), (c) (2012).

In this case, partially in accordance with the Board's remand, the RO obtained all available treatment records and the Veteran's service personnel file, afforded the Veteran VA examinations, and obtained opinions discussing the etiology of the Veteran's right ear hearing loss.  After the initial opinions were determined to be inadequate to decide this claim, the Board remanded the claim to ensure that a more comprehensive, adequate medical opinion was obtained.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).  

In a Written Brief Presentation associated with Virtual VA in September 2013, the Veteran claims that, in a 2012 VA opinion, the examiner could not opine whether the Veteran had hearing loss without resorting to speculation.  There is no such opinion of record.  Rather, during all VA audiological examinations conducted since 2003, examiners have diagnosed right ear hearing loss.  

In the December 2011 VA examination report, the VA examiner reviewed the Veteran's claims folder and provided a medical opinion concerning the Veteran's right ear hearing loss.  This opinion was supported by a detailed rationale and an accurate discussion of the Veteran's factual history.  This same examiner provided an additional/addendum opinion in February 2012 concerning the Veteran's left ear.  The RO obtained an addendum to the February 2012 opinion in April 2012.  The April 2012 addendum was provided by a different examiner, who essentially agreed with the prior opinions provided in December 2011 and February 2012.  However, while the April 2012 opinion appears not to concede acoustic trauma during service, remand for an additional opinion as to the right ear is not required because the December 2011 opinion considered and conceded the Veteran's history of in-service acoustic trauma in formulating her opinion.  The December 2011 VA examiner's opinion is found to be adequate an in accordance with the Board's prior remand.

Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).


II.  Analysis

The Veteran seeks a grant of service connection for right ear hearing loss on a direct basis as related to his active service.  According to a written statements he submitted in July 2007 and December 2011, he developed this condition secondary to his exposure to constant jet engine noise while working on the flight line without hearing protection.  He allegedly tried to contact fellow servicemen to substantiate his claim that he had flight line duties, but was unsuccessful, one of these individuals having passed away three years ago.  

The Board acknowledges the Veteran's statements, but considering them in conjunction with all of the medical information of record, finds that the preponderance of the evidence is against a grant of service connection for right ear hearing loss.  As discussed below, the Veteran's right ear hearing loss is not related to an in-service disease, event, or injury, including any military noise exposure, and did not manifest to a compensable degree within a year of his discharge from active service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

In cases involving service connection for hearing loss, impaired hearing will be considered to be a disease 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 (2012).

To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Once evidence is determined to be competent, its credibility must be evaluated.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 

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 or authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation.  See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

Certain diseases are considered chronic, per se, such as organic diseases of the nervous system.  38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a).  If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes.  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 diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

When a chronic disease is at issue, such as an organic disease of the nervous system or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology.  Evidence of 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.  38 C.F.R. § 3.303(b).  

Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology.  Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).

Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

Service connection may be presumed for chronic disease such as an organic disease of the nervous system, which includes sensorineural hearing loss, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise.  38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

In this case, post-service medical documents, including a report of a March 2003 ear consultation with a private physician, reports of June 2003, and June 2007 and December 2011 VA audiological examinations establish that the Veteran currently has right ear hearing loss by VA standards.  The question thus becomes whether this disability was incurred in service or, because the hearing loss has been characterized as sensorineural in nature, at least in part, whether it manifested to a compensable degree within a year of the Veteran's discharge from service. 

During active service, the Veteran had ear problems, including left ear hearing loss and tinnitus for which he is service connected, but none affecting his right ear.  In June 1963, he reported that he had had ear infections with water exposure, but the examiner noted left ear problems only.  An evaluation of the right ear was normal.  On examinations conducted in June 1963 and February 1965, the latter for purposes of discharge, audiometers revealed normal hearing in the right ear (when converted from ASA to ISO).   

According to his DD Form 214, the Veteran had a military occupational specialty of Protective Coating Specialist.  According to AF Forms 75 (USAF Airman Performance Report), the duties of this specialty included, in part, painting buildings and structures and traffic markings for roads, curbs and airplane runways.  Painting the markings on airplane runways would have exposed him to noise on the flight line as alleged.  The Board thus accepts as true that the Veteran was exposed to noise while serving on active duty.  

Decades after service, in November 1987, the Veteran underwent a private audiological evaluation, the results of which revealed bilateral hearing outside the normal range.  In 1994, he again sought private treatment for ear complaints, but none affecting his right ear.  

In March 2003, he underwent a private consultation, in part, because he had had a three and a half week history of right-sided hearing loss.  According to Roger M. Shea, M.D., prior audiometric testing revealed a flat right ear tympanogram and low volume consistent with middle ear effusion.  Dr. Shea confirmed hearing loss, aspirated serous fluid from the Veteran's middle ear space and placed a tube in his right ear. 

Since then, including during VA examinations conducted in July 2003, June 2007 and December 2011 and VA outpatient audiological evaluations, medical professionals have confirmed right ear hearing loss, predominantly sensorineural in nature, but with a conductive component most likely due to the PET.  

During the July 2003 VA audiological examination, the Veteran reported recreational noise exposure as a musician in a country music band.  The examiner noted a history of left ear problems in and since service and a recent insertion of a PET in the right tympanic membrane secondary to an ear infection.  

During the December 2011 VA examination, the VA examiner noted the levels of hearing loss (threshold shifts) shown on prior examinations and acknowledged the reported history of in-service noise exposure from working on the flight line and post-service noise exposure from playing guitar in a band for many years.  She ruled out a relationship between the in-service noise exposure and right ear hearing loss on the basis that the Veteran was released from active duty with right ear hearing well within the range of normal.  The examiner explained that according to a 2005 study by The Institute Of Medicine, there is no scientific basis for a delayed onset of hearing loss.  She further explained that it would be problematic to compare the Veteran's in-service entrance and exit examinations because the test batteries and instructions for each test were not the same.  The examiner concluded that, in the Veteran's case, the right ear hearing loss is due to aging, recreational noise exposure and general health, rather than military noise exposure.  In a February 2012 addendum, this same examiner again indicated that the Veteran's right ear hearing loss was less likely attributable to an event in the military.  However, she indicated that his left ear hearing loss (for which he is service connected) was related to his military service.

In April 2012, an addendum was obtained to the February 2012 addendum.  See Deferred Rating Decision, dated March 2, 2012.  This opinion was obtained from a different VA examiner, who essentially agreed with the December 2011 and February 2012 opinions.

There are no medical opinions of record refuting that of the December 2011 VA examiner's opinion.  The Board finds the December 2011 VA examiner's opinion to be probative, as it was supported by a detailed rationale and an accurate discussion of the Veteran's factual history.  The December 2011 VA examiner considered and conceded the Veteran's history of in-service acoustic trauma in formulating her opinion. 

The Veteran does not claim that his right ear hearing loss manifested in service or within one year of his discharge from service.  He has not reported experiencing right ear hearing loss symptoms during and since service.  Rather, he claims that it developed secondary to his in-service noise exposure.  His assertions represent the only evidence of record relating his hearing loss to his in-service noise exposure.  The Veteran is competent to report that he began having hearing difficulties at a certain time as such difficulties are capable of lay observation.  However, because he has no special training or expertise in medicine, he is not competent to attribute these difficulties to his active service.  See Kahana, 24 Vet. App. at 434; Jandreau, 492 F.3d at 1372; Buchanan, 451 F.3d at 1336; Barr, 21 Vet. App. at 303; Davidson v. Shinseki, 581 F.3d at 1313.  In any event, the Board finds the December 2011 VA examiner's opinion to carry more weight than that of the Veteran, given her relevant medical expertise.

Inasmuch as there is no competent and credible evidence relating the Veteran's right ear hearing loss to service, including the conceded noise exposure, or indicating that it manifested to a compensable degree within a year of his discharge from service, the Board concludes that such hearing loss was not incurred in or aggravated by active service and may not be presumed to have been so incurred.  

A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA.  VA is responsible for considering all such evidence, lay and medical.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  With regard to this particular claim, the evidence is not in relative equipoise.  The benefit-of-the-doubt rule is thus not applicable.


ORDER

Entitlement to service connection for right ear hearing loss is denied.


____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs