Citation Nr: 1331780 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-46 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please also note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013). The Veteran served on active duty from November 1956 to November 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part denied service connection for hearing loss. In March 2013 the Board remanded the case to the RO for additional development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Bilateral hearing loss disability did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active service and sensorineural bilateral hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Complete notification, to include the disability-rating and effective date elements of a service-connection claim, was provided to the Veteran prior to issuance of the rating decision on appeal. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, the Veteran has not identified any prejudice due to error in the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained medical treatment records and personnel records relating to the Veteran's period of active service, and has also obtained post-service VA and private treatment records from providers identified by the Veteran. The Veteran was notified of his entitlement to a hearing before the Board in conjunction with the appeal, but he declined such a hearing. The Board previously reviewed the file and determined that the medical examination of record was insufficient; the Board accordingly remanded the case for a supplementary opinion by the VA audiologist who had performed the original evaluation. In compliance with the Board's remand, the RO obtained an addendum opinion from the audiologist, which was rendered in May 2013. The Board has reviewed the addendum opinion and finds the RO substantially complied with the Board's remand directive. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also finds that the medical evidence of record is sufficient at this point for the Board to adjudicate the appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Applicable Laws and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests sensorineural hearing loss (SNHL) to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. at 159. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Service treatment records (STRs) are silent in regard to complaint during service of hearing problems. STRs include an entrance physical examination in November 1956 in which the Veteran's hearing was 15/15 under the "whispered voice" test. The record also records an audiometric evaluation in July 1959, performed in conjunction with a flight physical examination, that appears to show normal hearing. The Veteran had a separation examination in November 1960 in which his hearing was 15/15 under both the "whispered voice" and "spoken voice" tests that were standard at that time. Audiometric testing was also completed, but did not reflect hearing loss for VA purposes. His PULHES hearing profile was noted as H-1. (The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991), for an explanation of the military medical profile system.) The Veteran submitted a Statement in Support of Claim in September 2008 asserting that during active service he had been a crew chief and was either on the flight line or an active member of the air crew. He also stated that his hearing loss had bothered him since service, but he had "just put up with it." The November 2008 rating decision on appeal denied service connection for hearing loss based on a determination that the Veteran did not show hearing loss in service, as demonstrated by STRs, and that there is no medical evidence of record showing a relationship between current hearing loss and service. The Veteran filed a Notice of Disagreement (NOD) in January 2009. Enclosed with the NOD was a VA audiological evaluation that was dated in January 2008, which appears to show significant bilateral hearing loss at high frequencies. The Veteran submitted a letter to VA in November 2009 in which he stated that during service he never served in the rating of aviation machinist's mate or electrician; instead, he spent his entire service in and around aircraft. In his Substantive Appeal, received in December 2009, the Veteran again asserted his belief that hearing loss was caused by service in and around aircraft. He also stated that after service he worked as an electrician, which did not expose him to significant occupational noise. The Veteran had a VA audiological evaluation in September 2012, performed by an audiologist who reviewed the claims file. The audiologist stated the Veteran became very nervous and uncomfortable during testing and did not want to complete the audiological evaluation; thus, the audiologist was able to obtain only an incomplete evaluation. However, the audiologist had access to an earlier evaluation in January 2009, and the Veteran endorsed having no significant change since then; also, those portions of the audiological evaluation that could be completed exactly matched the parameters shown in January 2009 (which the Board notes to have demonstrated a degree of bilateral hearing loss considered disabling under 38 C.F.R. § 3.385) . On review of the claims file and STRs, the audiologist stated that current findings were in any case not required, since the Veteran had demonstrated excellent bilateral hearing at the time of his discharge from service. The audiologist stated an opinion that the Veteran's hearing loss was not likely related to service. As rationale, the audiologist stated that the Veteran had normal hearing from 500-6000 Hertz on separation from service; the worst thresholds in the right ear were 15 dBHL at 2000 Hertz, and the worst thresholds in the left ear were 10 dBHL at 2000 Hertz and 5 dBHL at 3000 Hertz. All other thresholds were 0 dBHL, as evidenced by data contained in the STRs. In March 2013 the Board remanded the file back to the VA audiologist who performed the evaluation cited above, for the purpose of obtaining clarification as to exactly why the finding of normal hearing on service constituted evidence that the Veteran's current hearing loss was not related to service. In response, the audiologist provided an addendum opinion in May 2013 explaining that noise-induced hearing loss or acoustic trauma would have been immediately apparent, i.e. present on the Veteran's separation physical audiometric testing, and would not manifest post facto. Again, the Veteran's hearing was normal at time of separation with no evidence of noise-induced hearing loss or acoustic trauma present within the audiometric data present within his STRs, specifically on his separation physical. Noise-induced hearing loss would have been evident at the time of his separation physical if it was the result of noise exposure experienced during his service time, but it was not. Review of the evidence above shows the Veteran has presented medical evidence of hearing loss to a disabling degree. Accordingly, the first element of service connection - medical evidence of a claimed disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The Veteran's STRs affirmatively demonstrate that the Veteran had normal hearing at the time of his discharge from service, as shown by his separation examination to include an H-1 hearing profile. As hearing loss is shown to have been not manifested during service, a medical opinion is required to demonstrate that a hearing loss that became manifest many years after discharge from service is nonetheless related to service. In this case, there is no medical evidence supporting a relationship between the Veteran's current hearing loss in service, and in fact the uncontroverted medical opinion of record, in the form of the VA audiologist's report with addendum, states an opinion that the claimed disorder is not related to service. The Board notes in that regard that the audiologist was demonstrably fully informed of the pertinent factual premises and that she provided a fully-articulated opinion supported by a reasoned analysis. Accordingly, the audiologist's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Board has considered whether presumptive service connection is warranted for SNHL under the provisions of 38 C.F.R. § 3.309(a). However, given the Veteran's normal hearing at separation from service, the Board has no reason to find the Veteran had hearing loss to a compensable degree within the year thereafter. While the Veteran is competent to attest to noise exposure in service and to subjectively experiencing hearing loss, as a lay person, the Veteran has not shown that he has specialized training sufficient to diagnose hearing loss or determine its etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, diagnosing hearing loss requires medical testing, and because hearing loss can have many etiologies, medical expertise is needed to determine the etiology of the Veteran's hearing loss. Accordingly, his opinion as to the diagnosis or etiology of hearing loss is not competent medical evidence. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his hearing loss disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). The Board finds the service treatment records and the opinion from the VA examiner to be more probative than the Veteran's lay assertions. In sum, based on the evidence and analysis above the Board has found the Veteran's bilateral sensorineural hearing loss disability did not become manifest during service or to a compensable degree within the first year after discharge from service. Moreover, the most probative evidence indicates the current hearing loss disability is not related to service. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54-55. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs