Citation Nr: 1331379 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-18 635A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from December 1965 to December 1967. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision. 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 "Virtual VA" system to insure a total review of the evidence. The Board notes that in his September 2013 written argument, the Veteran's representative, in addition to listing the issue of service connection for bilateral hearing loss as being on appeal, also listed the issues of service connection for sexual dysfunction and hypertensive vascular disease as being before the Board. However, the Veteran, through his representative, specifically withdrew both issues from appellate status in an October 2009 letter. The Board further notes that service connection for coronary artery disease was granted in a July 2011 rating determination, with the effective date being the Veteran's initial request for service connection. Moreover, the Veteran's local representative, in his November 2012 written argument, specifically indicated that the only issue which remained on appeal was the issue of service connection for bilateral hearing loss. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. Based upon the Veteran's withdrawal of his claims for service connection for hypertension and sexual dysfunction in the October 2009 letter and the grant of service connection for coronary artery disease in the July 2011 rating determination, along with the local representative specifically indicating that the only issue currently on appeal is the issue of service connection for bilateral hearing loss, the Board will only address the hearing loss issue in this appeal as it is the only issue in appellate status. It the Veteran wishes to further pursue either issue, he should file a claim at the RO. FINDINGS OF FACT 1. Symptoms of hearing loss were not chronic in service. 2. Symptoms of hearing loss were not continuous since service. 3. Hearing loss did not manifest to a compensable degree within one year of service separation. 4. Current hearing loss is not causally or etiologically related to service. CONCLUSION OF LAW Hearing loss was not incurred in or aggravated by service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran's status has been substantiated. The Board observes that the RO, in a December 2007 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The Veteran was also provided with the required notice as to the disability rating and effective date elements of the claim in the December 2007 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all evidence necessary to decide this claim has been obtained, including service treatment records, a private hearing test, and VA treatment records; and the Veteran has not identified any other relevant records that have not been obtained. In conjunction with the Veteran's claim, he was also afforded a VA examination in January 2008. The Board finds this examination to be adequate in order to evaluate the Veteran's hearing loss claim as it included an interview with the Veteran, a review of the record, and a full physical examination, and provided the necessary opinion along with a sufficiently detailed rationale. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments and his testimony at a hearing if so desired. For example, the Veteran was scheduled to testify at a hearing before the RO, but he cancelled the hearing; and he was offered the opportunity to testify at a hearing before the Board, but he declined. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The disorder at issue, namely hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the 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 500, 1000, 2000, 3000, 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 provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). Where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA "shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record exists of such incurrence exists. In such a case a factual presumption arises that that the alleged injury or disease is service connected. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304. Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). The Veteran maintains that he was exposed to acoustic trauma while performing his duties as a combat Marine in heavy combat situations. He has indicated that the sounds of explosions, machine guns, mortars, rifle fire, and demolitions damaged his hearing, and maintains that it is his belief that his hearing loss started in Vietnam with all the constant noise, but simply took a long time to show up. The Board notes that the Veteran is the recipient of the Purple Heart and that he served courageously in the U.S. Marine Corps in the Republic of Vietnam. After a review of all the evidence, the Board finds that the Veteran was exposed to loud noises during service as a result of performing his duties as a combat Marine in Vietnam. However, it is also noted that the Veteran had considerable post-service loud noise exposure having worked for many years in the construction business. The weight of the evidence shows that symptoms of sensorineural hearing loss were not chronic in service. A review of the Veteran's service treatment records does not reveal any complaints or findings of hearing loss. At the time of the Veteran's October 1965 enlistment examination, he was found to have decibel level readings of -5, 0, -5, -, and -5 for the right ear and 0, -5, -5, - and 15 for the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Normal findings for the ears were reported at that time. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units. Essentially, that means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. Therefore, as converted to ISO units, the induction examination showed findings of 10,10, 5, -, and 0 in the right ear and 15, 5, 5, -, and 20 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. As such, the Veteran is found to have had normal hearing at enlistment physical. The Veteran underwent a separation physical in November 1967 but unfortunately it does not appear that any audiometric testing was conducted at that time. The Veteran was noted to have 15/15 hearing for whispered and spoken voice testing and his PUHLES profile at separation of "H1" is indicative of a high level of fitness with respect to his hearing. Without audiometric testing having been conducted at separation, there is simply no competent evidence establishing hearing loss in either ear for VA purposes. The weight of the evidence also demonstrates that symptoms of bilateral sensorineural hearing loss were not continuous after service separation, including that hearing loss did not manifest to a compensable degree within one year of service separation. The evidence of record also does not reveal symptoms, findings, or diagnosis of hearing loss in the years immediately following service. The first objective medical finding of hearing loss was not until August 2006, nearly 40 years after service, when the Veteran was first shown to have hearing loss for VA purposes by a private audiological consultation. The Veteran was afforded a VA examination in January 2008. At the time of the examination, the Veteran reported experiencing a bilateral progressive loss of hearing sensitivity, which he stated had begun 10 years earlier. He stated that he misunderstood speech and required repetitions in conversations. He also indicated that the television had to be loud. He had no complaints of otorrhea, dizziness, or tinnitus. He also had no history of ear infections, ear surgery, or hearing aid use. The Veteran was noted to have served in the Marines as a rifleman from December 1965 to December 1967. During that time he was exposed to noise from combat, artillery, demolitions, grenades, rifle fire, and machine guns. It was also noted that he had a 37 year history of occupational noise exposure, working construction with the use of hearing protection. The Veteran denied any history of recreational noise exposure. Audiological testing revealed puretone thresholds of 15, 25, 55, 65, and 65 in the right ear and 10, 10, 40, 70, and 70 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz respectively. Speech recognition testing was 90 percent in both ears. The examiner diagnosed normal hearing in the right ear through 1000 Hertz, dropping to mild sensorineural hearing loss at 1500 Hertz, dropping further to moderate hearing loss at 2000 Hertz, to moderately severe hearing loss at 3000-4000 Hertz, and rising to moderate hearing loss at 6000 to 8000 Hertz. For the left ear, the Veteran had normal hearing to 1500 Hertz, dropping to moderate hearing loss at 2000 Hertz, dropping to moderately severe hearing loss at 3000-6000 Hertz, and rising to moderate hearing loss at 8000 Hertz. The examiner stated that based upon lack of evidence in the claims folder and lack of proximity between the dates of service and the onset of the hearing loss and the date of this evaluation, it was his opinion that the Veteran's hearing loss was not at least as likely as not related to his military service. Essentially, the examiner considered all of the evidence available to him, and was fully apprised of the Veteran's military and post-military noise exposure. In a September 2008 notice of disagreement, the Veteran indicated that while serving as a combat Marine, the sounds of explosions, machine guns, mortars, rifle fire, and demolitions damaged his hearing. He stated that it was his belief that his hearing loss started in Vietnam with all the constant noise and that it just took a long time to show up. He noted that his mind was not on his hearing when he left the service but on the beautiful woman that he married. As demonstrated above, the first objective medical finding of hearing loss following service was not until August 2006. Therefore, the weight of the credible evidence reflects no chronic symptoms of hearing loss during service or within a year of separation from service. Additionally, continuity of symptomatology of hearing loss since service has not been shown. The Veteran has asserted that he was exposed to loud noise in service, and there is simply no disputing such noise exposure, given his combat experiences and the fact that a booby trap detonated within a close enough proximity of the Veteran to strike him with shrapnel. However, as noted, no hearing problems were either reported or noted at the Veteran's separation physical. While the Veteran argued in his notice of disagreement that he had not been focused on his hearing at the time of separation, the fact is that the Veteran marked twenty-one different ailments on a medical history survey completed in conjunction with his separation physical, but specifically denied any ear problems at that time and did not mention hearing problems to the medical officer. This is taken as strong evidence that the Veteran was not experiencing symptoms of hearing loss at separation. Moreover, at his VA examination in 2008, the Veteran reported first noticing hearing problems approximately ten years earlier, which would place his reported onset of symptoms more than two decades after service. Additionally, the Veteran did not seek any treatment for hearing problems for approximately three decades after service, which is further evidence to refute any continuity of symptomatology from service. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. As such, the Veteran is considered competent to describe his perception of diminished hearing acuity. However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As described above, any assertion that the Veteran was experiencing symptoms of hearing loss continuously from separation is refuted by the contemporaneous evidence which directly refutes any assertion that he was having hearing problems at separation, and by the many years after service without treatment. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim) As such, the 38 C.F.R. § 3.303(b) presumptions have not been met. Nevertheless, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Veteran was informed of the necessity to submit evidence showing a relationship between any claimed hearing loss and his period of service. The Veteran has not obtained or submitted such evidence tending to show a relationship between current hearing loss and noise exposure during service. The Board finds that the Veteran was exposed to significant in-service noise during combat; however, the his lay statements that his hearing loss was precipitated by such in-service noise exposure do not constitute competent evidence as to hearing loss of either ear and the disabilities' relationship to active service. The Veteran is not competent to offer an opinion concerning either the etiology of his sensorineural hearing loss as the determinations require both objective audiometric and speech recognition testing, which the Veteran cannot perform on himself. The appellant is not an audiologist, and has not offered any form of medical qualification. The question of the etiology of such a disability is not amenable to observation alone and is too complex to be addressed by a layperson. Such a relationship is the subject of extensive training and research by medical and audiological professionals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Veteran's contentions are not sufficient to relate his current bilateral hearing loss which began many years after service to his military noise exposure. His statements as to such noise exposure are competent, credible, and consistent with the circumstances, conditions, and hardships of his service during the Vietnam War; therefore, the provisions of 38 U.S.C.A. § 1154(b) are for application. However, the statute does not eliminate the need for medical nexus evidence. It merely reduces the evidentiary burden on combat veterans as to the submission of evidence of incurrence or aggravation of an injury or disease in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Libertine at 523-24. Given the Veteran's noise exposure and his current hearing loss, a VA examination was provided in January 2008. At the examination, the Veteran reported a history of noise exposure in service without hearing protection, he also indicated that his hearing loss had started about 10 years earlier and that he had worked in the construction business for 37 years following service, with noise exposure being reported along with ear protection being used. The examiner stated that based upon lack of evidence in the claims folder and lack of proximity between the dates of service and the onset of the hearing loss and the date of this evaluation, it was his opinion that the Veteran's hearing loss was not at least as likely as not related to his military service. Essentially, the examiner considered all of the evidence available to him, and was fully apprised of the Veteran's military and post-military noise exposure. The examiner's opinion was based upon a thorough review of the claims folder and a comprehensive examination of the Veteran, and he provided detailed rationale in support of his opinion. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. As such, the Board finds the opinion provided by the January 2008 VA examiner to be of high probative value. Additionally, no competent medical evidence has been advanced which questions the examiner's conclusion. Thus, the Board finds the January 2008 VA examiner's opinion weighing against a finding of relationship of hearing loss to service to be the most probative evidence of record; and given this conclusion the weight of the evidence demonstrates that the Veteran's current hearing loss is not otherwise related to service. See 38 C.F.R. § 3.303(d) (service connection 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); Hensley, 5 Vet. App. 155 (provisions of 38 C.F.R. § 3.385 do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service). In his September 2013 brief, the Veteran's representative argued that the regulations do not rule out an award of service connection due to the absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria. The Board does not disagree, but in this case, the most probative evidence of record weighs against the conclusion that it is at least as likely as not that the Veteran's bilateral hearing loss was the result of his military noise exposure. Bilateral hearing loss has not been shown to be related to the Veteran's significant combat noise exposure or to have otherwise originated during active service. It was not manifested to a compensable degree within one year of service separation and may not be presumed to have been incurred in service. Therefore, service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs