Citation Nr: 1331344 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-18 289 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had verified service with the Merchant Marine from November 1945 to December 1946. He also had active military service in the United States Army from February 1955 to February 1957. This case was initially denied by rating decision in September 2010 because new and material evidence had not been submitted. In October 2012, the Board of Veterans' Appeals (Board) reopened the issue of entitlement to service connection for bilateral hearing loss and remanded this issue and the issue of entitlement to service connection for a pulmonary disorder, to include asbestosis, to the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO) for additional development. In July 2013, the Board denied entitlement to service connection for a pulmonary disorder, to include asbestosis, and remanded the issue currently on appeal to the RO for an addendum from the examiner who evaluated the Veteran's hearing loss in June 2010. An addendum from the VA examiner was obtained in July 2013 and added to the claims files. Based on the above, there has been substantial compliance with the July 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). FINDING OF FACT The Veteran does not have a hearing loss that is causally related to service. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral hearing loss are not met, as the disorder was not incurred in or aggravated by active duty; nor may sensorineural hearing loss be presumed to have been incurred therein. 38 U.S.C.A. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A letter was sent to the Veteran in March 2010, prior to adjudication, that informed him of the requirements needed to reopen a claim for service connection. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private medical evidence was subsequently added to the claims files after the March 2010 letter. The Veteran was informed in the March 2010 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA evaluation for hearing was conducted in 2010, with an addendum obtained in July 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2013 VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings. The opinion considered all of the pertinent evidence of record at the time, to include the Veteran's medical records and statements, and provides a rationale for the opinion stated. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In cases, such as the present case, where some of the Veteran's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the Veteran in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the Veteran in developing facts pertinent to his claim in a case where service records are presumed destroyed includes the obligation to search for alternative medical records and alternative sources of evidence to substantiate the claim. Dixon v. Derwinski, 3 Vet. App. 261 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). According to an August 2007 Formal Finding on the Unavailability of Army Service Records, unsuccessful attempts were made to obtain the Veteran's service treatment records from the National Personnel Records Center. There is evidence on file that letters were sent to the Veteran in April 2007 and July 2007 informing him of the unavailability of his service treatment records. The Veteran was informed in the July 2007 letter from VA on other possible sources of evidence to support his claims, such as lay statements from people who knew him in service. Analysis of the Claim The Veteran seeks service connection for bilateral hearing loss. He has contended that he has hearing loss due to exposure to acoustic trauma in service. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of sensorineural hearing loss in the frequencies of 500 to 4000 hertz, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As is noted above, the Board is required to follow applicable statutes and regulations in its decisions. Applicable regulations provide that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds 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 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Although the Courts have also held that laypersons are competent to report symptoms regarding tinnitus as here, the determination of competency is different than that of credibility. See Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records, which are incomplete and do not include an entrance or separation evaluation, do not reveal any complaints or clinical evidence related to hearing loss. According to an October 1994 customer purchase agreement from Hearing Aid Express, the Veteran was buying a new hearing aid for his right ear. VA treatment reports dated from December 2001 to February 2010 reveal a notation in September 2003 of hearing problems. Bilateral mild hearing loss was noted in November 2008. A VA audiological evaluation was conducted in June 2010. It was noted that the Veteran wore hearing aids. The Veteran reported noise exposure in service from engines and rifles. It was noted that the claims files were not available for review. Pure tone thresholds at the relevant frequencies from 500 to 4000 hertz were 20, 25, 50, 65, and 80 decibels in the right ear and 15, 20, 25, 55, and 60 decibels in the left ear. A bilateral sensorineural hearing loss was diagnosed. The examiner noted that no opinion could be offered without a review of the claims files. According to an addendum opinion dated in July 2010 from the audiologist who examined the Veteran in June 2010, which included review of the claims files, because of the lack of service treatment records related to hearing acuity, the examiner could not opine on whether the Veteran's current hearing loss is related to acoustic trauma in service without resorting to speculation. VA treatment reports dated through May 2013 reveal that the Veteran was given new hearing aids in August 2010. His hearing aids were checked in February 2013. In response to the Board's July 2013 remand, the VA audiologist who previously examined the Veteran reviewed the claims files and noted in a July 2013 opinion that there were no service treatment records on the Veteran's hearing acuity during service because they were presumably destroyed by fire. According to this examiner, the Veteran had significant potential for occupational noise exposure as a "dry waller." The examiner also noted that the effects of aging on hearing acuity could not be ignored. The examiner concluded that, without any relevant medical evidence to review prior to recent findings, he could not resolve the issue of whether the Veteran's current hearing loss is causally related to service noise exposure without resorting to mere speculation. Although it has been contended by the Veteran that his current bilateral hearing loss is due to exposure to acoustic trauma in service, audiological evidence of a hearing loss was not shown until many years after separation from active duty. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim). The VA audiologist opined in July 2013 on other possible explanations for the Veteran's current hearing loss, namely exposure to acoustic trauma from his civilian occupation after service and hearing loss due to his age, and concluded that it would be no more than speculation to relate the Veteran's current hearing loss to exposure to acoustic trauma in service. The United States Court of Appeals for Veterans Claims (Court) addressed the issue of speculative medical opinions in the case of Jones v. Shinseki, 23 Vet. App. 382 (2010). The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. In this case, the VA audiologist cited to the absence of relevant hearing information in the available service treatment records, as well as the Veteran's post-service occupation and his advanced age, in concluding that a nexus opinion would be speculative. Consequently, this is a case where required information is missing or can no longer be obtained. Because the more probative medical evidence on file indicates that determining the cause of the Veteran's hearing loss would be speculative, the Board finds that Veteran does not have a hearing loss due to service. While the Veteran is competent to report his hearing symptoms, he is not competent to opine that he currently had defective hearing under the applicable VA definition due to service exposure to acoustic trauma. The Board finds that the probative evidence of record weighs against the claim. In other words, despite exposure to acoustic trauma in service, the evidence as a whole, as discussed above, does not show hearing loss due to service. Consequently, service connection for bilateral hearing loss is denied. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the service connected claim denied above, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs