Citation Nr: 1332040	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  09-41 529	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1965 to June 1967.  He received the Combat Infantry Badge.

This matter initially came before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO denied entitlement to service connection for bilateral hearing loss.

The Veteran testified before the undersigned at a May 2012 hearing at the RO (Travel Board hearing).  A transcript of that hearing has been associated with his claims folder.

In January 2013, the Board remanded this matter for further development.

The Veteran had also perfected an appeal with regard to the issue of entitlement to an increased rating for posttraumatic stress disorder (PTSD), and the Board had remanded this issue in January 2013 for further development.  In April 2013, the Appeals Management Center (AMC) granted an increased 100 percent rating for PTSD, effective October 29, 2008.  As the Veteran was granted the full benefit he sought with respect to the claim for an increased rating for PTSD for the entire claim period, the appeal as to that issue has been resolved and will not be addressed by the Board.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and considered as part of this appeal.


	


FINDING OF FACT

Hearing loss did not have its clinical onset in service, was not exhibited within the first post-service year, and is not otherwise related to active duty.


CONCLUSION OF LAW

Hearing loss was not incurred or aggravated in service and it may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113(b), 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309(a), 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

Under the VCAA, VA 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) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held 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).

In a pre-adjudication letter dated in March 2009, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for bilateral hearing loss.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the March 2009 letter. 

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).

At the Veteran's May 2012 hearing, the undersigned identified the issues on appeal at that time (including entitlement to service connection for bilateral hearing loss) and asked the Veteran about the history of his noise exposure and hearing loss and the treatment received for the disability.  Also, the Veteran provided testimony as to the history of his bilateral hearing loss and the treatment received for the disability and he has submitted additional evidence during the course of the appeal.  Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence.  Also, the Board subsequently remanded the claim of service connection for bilateral hearing loss to obtain additional evidence (i.e. VA treatment records and an opinion as to the etiology of the Veteran's current hearing loss) suggested by the hearing testimony.  The duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the adequately identified relevant post-service VA treatment records.  In addition, the Veteran was afforded VA examinations for his claimed hearing loss and opinions have been obtained concerning the etiology of this disability.

In its January 2013 remand, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, ask the Veteran to identify any additional relevant treatment records, obtain any additional relevant VA treatment records (including from the VA Medical Center in Miami, Florida (VAMC Miami) and the VA outpatient clinic in Sunrise, Florida (VAOPC Sunrise)) dated since June 2009, obtain any private treatment records for which appropriate release forms were submitted, and schedule the Veteran for a VA examination to obtain an opinion as to the etiology of his claimed hearing loss.   

During the May 2012 hearing, the Veteran reported that he had received treatment for hearing loss in the 1970s from "Dr. Tartan/Dr. Darkin."  He explained that this physician was retired and that he had been unable to obtain any treatment records from that treatment provider because the records had been destroyed.  Also, VA audiology consultation notes dated in August 2010 indicate that the Veteran was "referred back to his outside [ear, nose, and throat physician] for evaluation and treatment" of his hearing loss.  However, the referenced medical provider was not identified and the Veteran has not otherwise identified any private medical treatment for hearing loss other than from "Dr. Tartan/Dr. Darkin" in the 1970s.

Moreover, in January 2013 the AOJ sent the Veteran a letter and asked him to identify any relevant private treatment provider and to submit the appropriate release form so as to allow VA to obtain any identified relevant private treatment records.  Copies of the release form (VA Form 21-4142) were included with the letter.  The Veteran did not submit any completed VA Form 21-4142.  Rather, he responded in a February 2013 statement (VA Form 21-4138) that "all medical evidence in support of [his] appeal [could] be obtain[ed] from [his] VA treatment records located at VAMC Miami and VAOPC Broward."

VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished.  38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records).  As the Veteran has not submitted the appropriate release form so as to allow VA to obtain any private records of treatment for hearing loss and no relevant private treatment provider has been specifically identified other than "Dr. Tartan/Dr. Darkin" (from whom records are reportedly not available), VA has no further duty to attempt to obtain any private treatment records.

Moreover, all identified relevant VA treatment records (including records from VAMC Miami and VAOPC Sunrise) have been obtained and associated with the claims file/included among the Veteran's paperless records in the Virtual VA system.  In addition, a VA examination was conducted in June 2013 and an opinion was obtained concerning the etiology of the Veteran's claimed hearing loss. Therefore, the AOJ substantially complied with all of the Board's pertinent January 2013 remand instructions and VA has no further duty to attempt to obtain any additional records or conduct additional examinations with respect to the claim being decided herein.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).



Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (including organic diseases of the nervous system (e.g. sensorineural hearing loss)) is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

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

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities (such as organic diseases of the nervous system) are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In this case, the June 2013 VA examination report reveals that the Veteran has been diagnosed as having bilateral sensorineural hearing loss as defined by VA.  See Id.  Thus, current hearing loss has been demonstrated.

The Veteran contends that his current hearing loss is the result of exposure to loud noise in service associated with military weaponry and equipment while serving in Vietnam.  He has not reported, and the evidence does not otherwise reflect, any significant post-service noise exposure.  His DD 214 indicates that he engaged in combat in service, as he served in Vietnam and received the Combat Infantry Badge.  In-service noise exposure, such as that described by the Veteran, could be consistent with the circumstances of his service.

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 of such incurrence exists.  In such a case, a factual presumption arises 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.

The Veteran is competent to report noise exposure in service during combat situations.  Such reports are satisfactory evidence, and his reports are consistent with the circumstances of his service in Vietnam.  There is no clear and convincing evidence to the contrary.  Hence the presence of in-service acoustic trauma is conceded.  

Nevertheless, the presumptions of 38 U.S.C.A. § 1154(b) do not extend to the nexus element of a claim of service connection.  Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997).

The Veteran has not reported, and the evidence does not otherwise indicate, a continuity of symptomatology with regard to his hearing loss.  There is no evidence of any complaints of or treatment for hearing loss in his service treatment records and his June 1967 separation examination was normal.   

If a chronic disease (such as an organic disease of the nervous system (e.g. sensorineural hearing loss)) is shown in service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).  There must, however, be sufficient observations in service to identify the disease entity.  Id.  As discussed above, there is no evidence showing any diagnosed sensorineural hearing loss in service and the Veteran has not reported any hearing loss in service.  Hence, service connection cannot be granted on this basis here.

The objective evidence otherwise indicates that the Veteran's current hearing loss did not manifest until years after service.  The earliest post-service report of hearing loss is evident in the Veteran's May 2012 hearing testimony which reflects that he reported that hearing problems had their onset in approximately the mid-1970s.  Also, the first post-service clinical evidence of hearing loss is a September 2006 VA audiology consultation note which includes a report of left ear hearing loss for over fifteen years and includes a diagnosis of binaural sensorineural hearing loss.  There is no lay or clinical evidence of any earlier hearing loss following service.  

There are conflicting medical opinions as to whether the current bilateral hearing loss is related to service.  The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994).

In May 2007, the audiologist who conducted a February 2007 VA examination opined that the Veteran's hearing loss was not caused by or a result of military noise exposure.  This opinion was based on the fact that his hearing was found to be normal at the time of his 1967 separation examination.

In June 2012, a physician opined that the Veteran's hearing loss was most likely caused by or a result of "noise exposure from mortar shells."  There was no further explanation or reasoning provided for this opinion.

The audiologist who conducted the June 2013 VA examination opined that the Veteran's hearing loss was not likely (not "at least as likely as not"/"50 percent probability or greater") caused by or a result of service.  She reasoned that a hearing test at the time of separation from service showed normal hearing.  Also, the Institute of Medicine Report on noise exposure in the military concluded that, based on current knowledge, noise-induced hearing loss occurs immediately.  There was no scientific support for delayed onset noise-induced hearing loss weeks, months, or years after the exposure event.  Given that the Veteran's hearing was within normal limits at the time of separation from service, his current hearing loss was not likely ("less likely as not") caused by or a result of acoustic trauma sustained in service.

The June 2012 opinion is entitled to little, if any, probative value because it is not accompanied by any explanation or reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  Also, the physician who provided the opinion did not indicate that he reviewed any treatment records (including service treatment records and treatment records dated since the Veteran's separation from service) prior to formulating his opinion.

The June 2013 opinion, however, was based upon an examination of the Veteran and a review of his medical records and reported history and is accompanied by a specific rationale that is not inconsistent with the evidence of record.  Thus, this opinion is adequate and entitled to substantial probative weight.  See Id.

Although the May 2007 opinion is of limited probative value because it is entirely based on a lack of objective clinical evidence of hearing loss at the time of the Veteran's separation from service, it at least supports a conclusion that his current hearing loss is not related to service.

The Veteran has expressed his belief that his current hearing loss is related to noise exposure in service.  However, as a lay person, he can only comment as to symptoms and immediately-observable relationships.  He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current hearing loss is related to any specific injury in service (including acoustic trauma), as opposed to some other cause.  Rather, it would require medical expertise to evaluate the disability, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2) (2013).

There is no other evidence of a relationship between the Veteran's current hearing loss and service, and neither he nor his representative has alluded to the existence of any such evidence.  Also, as discussed above, the record fails to demonstrate any evidence of a continuity of symptomatology.  Thus, the preponderance of the evidence is against a finding that the Veteran's current hearing loss is related to service, manifested in service, or manifested within a year after his June 1967 separation from service.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for bilateral hearing loss must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.




___________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs