Citation Nr: 1331644 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 08-30 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1956 to September 1957. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2010, a Travel Board hearing was held before one of the undersigned Veterans Law Judges. A transcript of the hearing has been associated with the claims file. In December 2010, the Board remanded the case to the RO for additional development. In September 2012, a second Travel Board hearing was held before another of the undersigned. A transcript of that hearing has also been associated with the claims file. Because a governing regulation provides that each Board Member who conducted a hearing in a matter must participate in the decision on the matter, this case was assigned to a panel of three Veterans Law Judges. The Veteran was advised of his right to a hearing before the third of the undersigned; at the September 2012 hearing he waived his entitlement to such a hearing. In January 2013, the Board remanded the case to the RO for additional development. After completion of the development, the RO readjudicated the case and as it remained denied, it was returned to the Board for its consideration. As noted in the December 2010 and January 2013 Board remands, the issue of service connection of tinnitus has been raised by the record but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is again referred to the RO for appropriate action. This appeal as been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (2002). FINDING OF FACT A hearing loss disability of either ear is not shown to have been manifested during service; sensorineural hearing loss (SNHL) was not manifested to a compensable degree within one year following the date of the Veteran's separation from service in September 1957; and a bilateral hearing loss disability is not shown to be related to an injury, disease, or event in service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1131, 1112, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), 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. Also, the VCAA notice requirements apply to all five elements of a service connection claim, namely: 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). VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter dated in December 2007. The Veteran was notified of the evidence needed to substantiate a claim of service connection for bilateral hearing loss; that VA would obtain service records, VA records and records of other Federal agencies; and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the elements of a service connection claim regarding the effective date of an award and the degree of disability. Furthermore, under 38 U.S.C.A. § 5103A, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. As was previously noted, hearings were held before two of the undersigned Veterans Law Judges, in April 2010 and in September 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearings, the Veterans Law Judges indicated that the hearings would focus on the issue of service connection for bilateral hearing loss, and discussed the elements of the claim that was lacking to substantiate the claim, particularly the exposure to noise during service and the problems with hearing acuity since service. The Veteran was assisted at the September 2012 hearing by an accredited representative from Paralyzed Veterans of America (he did not have a representative at the time of the April 2010 hearing, except a VA employee was on hand if he required assistance). The representative and the Veterans Law Judge asked questions at the hearings to ascertain the nature and etiology of the hearing loss. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked and that might substantiate the claim. The hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearings. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judges complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The RO has also obtained the available service treatment records. Notably, the only available records consist of the separation physical examination and report of medical history, both dated in September 1957, as most were presumed destroyed during a fire at the National Personnel Records Center in July 1973. The Veteran has been apprised of this to include by telephone in December 2011 (he said he had no copies of his service treatment records) and by letters in March 2013 and June 2013, wherein he was given an opportunity to submit any copies of service treatment records in his possession or documents that could substitute for service treatment records (e.g., "buddy" certificates, letters/photographs contemporaneous with service, and insurance/employment physical examinations. The RO has also obtained the Veteran's VA medical records. The RO attempted to obtain records from St. Joseph Medical Center, where the Veteran indicated that he went for a hearing test in the early 1990s, but the medical center responded in April 2011 that it did not have any records of the Veteran. The Veteran has not identified any additional available evidence, such as private medical records, that remains outstanding. VA has provided the Veteran with examinations to assist him to substantiate his claim. 38 U.S.C.A. § 5103A(d). He was examined by VA in February 2008, January 2012, and February 2013, and a VA medical opinion regarding the etiology of his current bilateral hearing loss was obtained in May 2009. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Where a veteran served 90 days or more of continuous, active service and a chronic disease, such as SNHL (as an organic disease of the nervous system), becomes manifest to a degree of 10 percent within one year from the date of separation from service, the 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. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). Service connection may 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). 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 of 500, 1000, 2000, 3000, and 4000 Hertz 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. In cases where a veteran's service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b). O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Veteran served on active duty from October 1956 to September 1957. His service personnel records (DD Form 214) show his military occupational specialty was a light weapons infantryman. As earlier noted, the only service treatment records available for review are the separation physical examination report and medical history report, both dated in September 1957. These are silent for any complaints, findings, treatment, or diagnoses relating to hearing loss, to include ear/nose/throat trouble or running ears. The separation examination indicated that the Veteran was 15/15 for whispered and spoken voice. Thus, on the basis of the service treatment records alone, the bilateral hearing loss (under VA standards for hearing loss disability) were not shown to have had onset during service, and service connection under 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) is not established. Further, although service records show that the Veteran's military occupational specialty likely involved noise exposure of some level, there is no documentary evidence of any complaints or findings of hearing loss in service. Service treatment records are largely unavailable, and the Veteran has twice testified that he did in fact complain to his superior officer during training in service in 1957 about having hearing problems, but was sent back out for training and was not treated (at the 2010 hearing, when asked if his hearing problems had been temporary, he stated that after the noise exposure his hearing would "go and come"). Nevertheless, it is also significant to note that when given an opportunity at the time of his physical examination for separation to report any current or past ear trouble, the Veteran specifically denied a current or history of ear trouble, and there was no hearing loss identified or diagnosed at that time. On his report of medical history in September 1957, the Veteran indicated that his health was "good." The Veteran is competent to describe bilateral hearing loss even though the symptoms were not recorded during service, but as the available service treatment records lack the documentation of the combination of manifestations sufficient to identify the hearing loss, and sufficient observation to establish chronicity during service, and as chronicity in service is not adequately supported by the available service treatment records, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). As will be explained, there is not continuity of symptomatology after service to support the Veteran's claim. The Veteran was separated from active service in September 1957. It was almost exactly 50 years after service when he initially filed a claim for compensation for bilateral hearing loss with VA in September 2007. Medical records show that the initial documentation of a hearing loss disability (under VA standards) was in February 2007, when his right ear was shown to have severe to profound hearing loss and his left ear was shown to have moderate to severe hearing loss. In statements and testimony, the Veteran indicated that he sought a hearing evaluation at the VA in Birmingham, Alabama in 1958 due to hearing loss particularly in his right ear, but he was informed that nothing was going to be done for him. He has stated that his hearing was evaluated at St. Joseph Medical Center in 1991; both he and the medical center have indicated that there are no available records of such evaluation. It is also noted that he testified that he worked in a noisy environment (factory) from 1961 to 1968, without hearing protection, but he was not given any hearing examinations during that time. At an initial VA examination in 2008, he reported a history of 45 years of noise exposure working in a plant without hearing protection, but there are no reports of the Veteran having any hearing evaluations in connection with his employment. Therefore, a review of the post-service records shows that the initial documentation of hearing loss under VA standards for hearing loss disability comes nearly 50 years after the Veteran's discharge from service in September 1957. The absence of continuity of symptoms, from active service which ended in 1957 until 2007 is persuasive evidence against continuity of symptomatology. However, it is recognized that the Veteran is competent to describe symptoms of hearing loss during and after service. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (Lay testimony is competent evidence insofar as it relates to symptoms of an injury or illness.). In statements and testimony, the Veteran has specifically claimed to have experienced hearing loss during and ever since service, particularly in his right ear, and that he sought an evaluation at VA within months of his service separation (but was turned away) and then at a private medical center in 1991. Moreover, his wife indicated in a statement that the Veteran had been complaining of hearing loss while in the service up until he was issued hearing aids. She testified at the 2012 hearing that she had met the Veteran in 1958 (although they were not married until much later) and that she noticed then his hearing was "leaving." Having found the Veteran's lay statements as to hearing problems during and ever since service to be competent, the Board must also determine whether such evidence is credible. See Layno v. Brown, 6 Vet. App. 465 at 469. The Board, as fact finder, is obligated to determine the probative value or weight of the lay evidence in deciding whether there is continuity of symptomatology. In weighing credibility, VA may consider inconsistent statements and internal inconsistencies. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Further, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 Vet. App. 1331 (Fed. Cir. 2006). The Veteran has reported hearing problems beginning in service, and unfortunately most service treatment records are unavailable. However, the separation physical examination reports are of record and do not document any complaints or reports of a history of hearing problems. This is significant contemporaneous documentation of the status of the Veteran's health upon leaving the military. The Veteran had a clear opportunity to report hearing problems at that time or during service, but he did not and instead wrote that his health was "good." If he had been experiencing hearing loss at that time or at all during service, he presumably would have indicated that fact upon questioning at the time he was discharged. The Board thus places great probative weight on the available service treatment records, which do not reference a complaint of a hearing problem or a clinical finding of in-service hearing loss. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran). It is further noted that at the 2010 hearing, the Veteran alluded to the fact that in service his hearing difficulty was temporary, as his hearing would "go and come" after his exposure to noise during training in service. The Veteran also states that soon after service he went to the Birmingham VA for an evaluation of his hearing in 1958 but was turned away. If he had been having hearing difficulties at that juncture within the year after service, he presumably would have filed a VA claim for disability compensation then. Instead, his initial claim relating to hearing loss was filed in 2007, decades after his long-time exposure to noise in various factory jobs. He has not offered any explanation as to why he chose not to file a VA claim until 2007. For the foregoing reasons, the Board finds that the Veteran's statements that his hearing problems had onset during service and continued after he was discharged from service lack credibility, particularly on account of his inconsistent history and complaints and inconsistency with other evidence in the file. Caluza v. Brown, 7 Vet. App. 498, 511- 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (discussing the factors to be considered in determining the weight to be assigned to evidence, including inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, and witness demeanor). Stated another way, any assertions of hearing loss existing from the time of service, while competent, lack credibility both because they are self-serving and because they have been inconsistent, including with other evidence of record. Therefore, based on the Veteran's statements and medical records, there is no continuity of symptomatology to support the claim of service connection for bilateral hearing loss. As continuity of symptomatology has not been established, by the clinical record and by the statements of the Veteran, the preponderance of the evidence is against the claim of service connection for bilateral hearing loss based on continuity of symptomatology under 38 C.F.R. § 3.303(b). Further, such documentation of confirmed hearing loss under VA standards for hearing loss disability, coming nearly 50 years after service separation, is well beyond the one year presumptive period for SNHL as a chronic disease (organic disease of the nervous system) under 38 U.S.C.A. §§ 1112, 1137 and 38 C.F.R. §§ 3.307 and 3.309. Hence, service connection for SNHL on a chronic disease presumptive basis is not established. The analysis turns to the question of whether service connection for bilateral hearing loss may be granted on the basis that such disability, while first diagnosed after service, is nonetheless related to service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d). The Board finds that the competent evidence does not link any current bilateral hearing loss to an injury or disease or event in service or otherwise to the Veteran's period of service. The record contains several statements by VA examiners, some of which were insufficient for reasons such as the claims file was unavailable for review or that conclusions contained inadequate rationale. In assessing the probative value of the medical opinions in the record, greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Veteran underwent VA examinations in February 2008, January 2012, and February 2013, to determine the etiology of his bilateral hearing loss. At the time of a February 2008 examination, the claims file was reviewed, to include the Veteran's pertinent medical history and contentions of hearing loss beginning during service. Also noted was the Veteran's post-service history of occupational noise exposure in a steel mill for eight years without the use of hearing protection, as well as 45 years of noise exposure in a plant without hearing protection. The diagnoses were profound hearing loss in the right ear and from mild to severe hearing loss in the left ear. The examining audiologist opined that based on a lack of evidence in the claims file and of proximity between service and the VA examination, the Veteran's hearing loss complaint was not at least as likely as not related to his military service. In a single statement provided in May 2009, which was unaccompanied by any rationale, a VA physician reviewed the claims file and concurred with the opinion of the February 2008 VA examiner. As the February 2008 VA examiner appeared to rely on the absence of corroborating evidence in the claims file as well as the whispered and spoken voice hearing test results in service (which are not necessarily sufficiently sensitive to rule out the presence of a high frequency impairment), an addendum to the prior VA medical opinion was sought, which would consider the Veteran's statements regarding his hearing problems since separation from service. Thus, in January 2012 the Veteran appeared before the same VA examining audiologist as in February 2008. The examiner reviewed the Veteran's history with the Veteran as recorded previously on the February 2008 examination report, because the claims file was unavailable at that time; the Veteran found no changes to his history or complaint was needed. The examiner acknowledged the request to provide an opinion that addressed the Veteran's assertions that he separated from service with hearing problems that progressively and gradually worsened over time. The examiner concluded that his prior medical opinion remained unchanged, despite the consideration given to the Veteran's assertions of noise exposure in service and hearing problems after discharge from service. The examiner found that there was no documentation to support the Veteran's assertions, as the claims file was silent for complaints or evidence of hearing loss and as there was no other supporting military or private documentation to support a nexus between the current audiologic results and hearing loss at or closer to the Veteran's service discharge. Thus, in summary, the medical opinions given in February 2008, May 2009, and January 2012, pertaining to the onset of the Veteran's bilateral hearing loss, are unfavorable to the Veteran's claim. However, the VA examiners' opinions provided were not always based on a review of the entire medical file and were not always accompanied by adequate rationale in that conclusions appeared to be based on the absence of corroborating documentation (presumably objective medical evidence). Therefore, such opinions are accorded limited probative weight. In light of this and to correct deficiencies, the Board directed that another VA examination be conducted. The Veteran underwent a comprehensive VA audiological examination by another audiologist in February 2013. This involved a careful review of the entire record and consideration of the degree of likelihood that the current bilateral hearing loss disability was related to noise exposure in-service or was otherwise related to service. The examiner noted that the Veteran reported to her that his hearing loss began in service, that he complained of hearing loss to his military supervisor, and that after discharge he sought an evaluation at the VA but was told nothing could be done for him. The Veteran's reports of losing jobs due to hearing loss, his long-term occupational noise exposures, and history of no hearing protection were also acknowledged. Following review and examination, the examiner concurred with the previous VA examiners' opinions, concluding that it was not at least as likely as not that the Veteran's hearing loss was caused by or a result of an event in military service. The examiner stressed that the Veteran had decades of exposure to noise while working in industrial occupations after service without hearing protection, which she believed to be the likely cause of his current severe hearing loss. She was also not persuaded by the assertions of Veteran and his wife that the Veteran had hearing loss since service, given that he had delayed 50 years in filing an initial claim for VA benefits and had significant industrial noise exposure in his post-service career. There are no other medical opinions of record that are probative of the etiology of the Veteran's bilateral hearing loss, and the Veteran has not offered any medical opinions to contradict the VA examiner's findings. The VA examiner in February 2013 reviewed the Veteran's records, recorded his history, accounted for his history of noise exposures in and out of service, and provided a reasoned conclusion based on the facts gathered and her own medical expertise. Her conclusion essentially was that the Veteran's bilateral hearing loss is more likely attributable to long-term occupational noise exposure after service than to military noise exposure. The assertions of the Veteran and his wife of hearing loss onset in service were considered and rejected. The Board finds that this opinion warrants substantial probative weight, particularly as it involved a careful review of the entire record and consideration of the degree of likelihood that the current bilateral hearing loss disability was related to in-service noise exposure, as claimed. Further, the opinion also addressed matters that were not directly addressed in the previous opinions, to include assertions by the Veteran and his wife as to hearing loss problems during and ever since service. The Veteran's own statements (and those of his wife) can be used only to provide a factual basis upon which a determination could be made that a particular injury occurred in service, not to provide a diagnosis or a medical opinion linking that in-service disease or injury to a current disability. Although he is competent to describe symptoms of hearing difficulty, see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge), hearing loss disability (as defined) is not a condition found under caselaw to be capable of lay observation, and the determination as to the presence of hearing loss therefore is medical in nature, that is, not capable of lay observation. See Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Also, under certain circumstances, a layperson is competent to identify a simple medical condition; or the layperson is reporting a contemporaneous medical diagnosis; or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran is competent to describe symptoms of hearing loss, the diagnosis requires the application of medical expertise to the facts presented, which include the Veteran's history and symptomatology and audiometric testing as required under 38 C.F.R. § 3.385. For this reason, the Board determines that a hearing loss disability under 38 C.F.R. § 3.385 is not a simple medical condition that a layperson is competent to identify. Where, as here, the determinative question involves a nexus or causation where a lay assertion on medical causation is not competent evidence, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. As a layperson, the Veteran is not qualified through education, training, and expertise to offer a medical diagnosis or an opinion on medical causation. For these reasons, the Board rejects the Veteran's (and his wife's) statements as competent evidence to substantiate that his current bilateral hearing loss either had onset during service or is related to an injury, disease, or event therein. The preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is denied. GEORGE R. SENYK S. L. KENNEDY Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs