Citation Nr: 1333300	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  09-49 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss disability.

2.  Entitlement to service connection for left ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to September 1968. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  This case was before the Board in July 2012 when it was remanded for additional development.

In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claims.  The documents in the Veteran's VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of entitlement to service connection for left ear hearing loss disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


FINDINGS OF FACT

1.  Right ear hearing loss disability was not shown during active duty service or for many years thereafter.

2.  No current right ear hearing loss disability is etiologically related to service.


CONCLUSION OF LAW

Right ear hearing loss disability was not incurred or aggravated in service, and right ear sensorineural hearing loss may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2013). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA) 

The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353  (Apr. 30, 2008)).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

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).

Regarding the claim of service connection for right ear hearing loss disability, the record reflects that the Veteran was mailed a letter in February 2008 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claim.  The Veteran was provided complete notice prior to the adjudication of the claim.

The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim.  In this regard, the Board notes that all available service treatment records (STRs), service personnel records and post-service treatment records were obtained.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  (In this regard, a July 2012 letter requested the Veteran to submit copies of annual employment hearing tests, or a release authorizing VA to obtain these records.  The Veteran responded in July 2012 by submitting evidence already of record; he failed to provide any new evidence.)

In addition, the Board finds that no additional development for medical opinions or examinations is necessary.  In this regard, the Veteran has been afforded the appropriate VA examination to determine the etiology of his right ear hearing loss disability.  As directed by the July 2012 Board remand, a VA examination was provided in October 2012 so as to ascertain whether any currently-diagnosed right ear hearing loss disability is etiologically-related to service.  The examination included the requested opinion, along with supporting reasons and bases.  Accordingly, the Board finds that there has been substantial compliance with its remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  

In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the Veteran.  Accordingly, the Board will address the merits of the claim.

II.  Service Connection - Laws and Regulations

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), 3.304.

In addition, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  If the condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) does not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  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 as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b). 

Service connection may also be granted for any disease initially 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). 

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, or 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. 

In reviewing the evidence, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 496 (1997), 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, supra (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"). 

Lay 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).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009).  In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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; 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.

III.  Factual Background and Analysis 

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 of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

The Veteran claims entitlement to service connection for right ear hearing loss disability as due to noise exposure during service.  Specifically, the Veteran reported acoustic trauma in service from a variety of sources, to include rifles, machine guns and demolition.  See August 2008 statement from the Veteran.  However, based on the evidence of record, the Board finds that service connection is not warranted. 

STRs for the Veteran's period of active duty from September 1966 to September 1968 are negative for complaint or findings of right ear hearing loss disability.  The Veteran denied any ear trouble or hearing loss on a July 1966 Report of Medical History.  Prior to November 1967, service departments used ASA units to record pure tone sensitivity thresholds in audiometric measurement.  VA currently uses ISO (ANSI) units.  For purposes of comparison between the service audiometric data and more recent VA audiometric data, the table below shows the ASA measurements recorded in service, with the comparable ISO (ANSI) measurements in adjacent parentheses.  Audiometric evaluation in July 1966 revealed:




HERTZ



500
1000
2000
3000
4000
RIGHT
5(20)
10(20)
0(10)
0(10)
0(5)
LEFT
15(30)
5(15)
5(10)
0(10)
35(40)

The Veteran denied any ear trouble or hearing loss on a August 1968 Report of Medical History.  The Veteran's August 1968 military separation examination report included the results of an audiogram that recorded his pure tone auditory thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
N/A
0
LEFT
0
0
0
N/A
0

Service personnel records for the Veteran's active duty service show that the Veteran's military occupational specialty (MOS) was pioneer (12A10). 

A February 2004 VA outpatient treatment record notes the Veteran's statement that his hearing was "fair."

Hearing evaluations conducted by the Veteran's employer in 2004, 2005 and 2006 show hearing loss disability.

Following service, the Veteran submitted the instant claim in January 2008, claiming that he had hearing loss since 1970.

In May 2008, the Veteran underwent a VA audiology examination.  He reported in-service noise exposure from weapons, jeeps and demolition, and post-service noise exposure from hunting, farming, driving trucks and welding.  The results of audiometric testing were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
45
50
65
LEFT
35
40
55
65
80

The Veteran's speech recognition scores were 80 percent correct in his right ear and 86 percent correct in his left ear.  He was diagnosed as having sensorineural hearing loss in the higher frequencies that was moderately severe in his right ear and mild to severe in his left ear.   As to the issue of nexus, the May 2008 VA audiologist reviewed the Veteran's service treatment records, noting that his entrance and separation examination reports revealed hearing within normal limits (WNL), with better thresholds at separation.  As to the etiology of the Veteran's hearing loss, the VA audiologist opined that it was less likely as not that the Veteran's current hearing impairment was a consequence of acoustic trauma during military service.  The VA audiologist's stated rationale was as follows: "Military noise exposure to jeep, rifles, machine guns, demolition - no ear protection.  No history of tinnitus reported.  Entrance and separation exams were WNL bilaterally, with better thresholds on the separation exam."

An October 2012 VA examination report notes that the results of audiometric testing were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
45
55
65
60
LEFT
40
50
65
75
90

The Veteran's speech recognition scores were 86 percent correct in his right ear and 84 percent correct in his left ear.  After reviewing the claims file, the examiner opined (in pertinent part) that the Veteran's right ear hearing loss disability was not at least as likely as not caused by or a result of his military service.  Moreover, the examiner stated that there was no evidence that the Veteran incurred hearing loss during his service, and significant evidence that he did not incur hearing loss during service.  In this regard, the examiner noted that the Veteran's right ear hearing was within normal limits during service, to include at discharge.  In addition, the Veteran denied any hearing loss at discharge.  The examiner noted the Veteran's history of in-service noise exposure from weapons, vehicles and demolition, but also his post-service noise exposure from driving trucks (30+ years) and welding (8-10 years).  As to delayed onset hearing loss, the examiner cited to a study by the Institute of Medicine, which concluded that "there was no scientific basis for delayed or late onset noise-induced hearing loss."

In light of the Veteran's MOS, the Board finds credible his account of noise exposure in service, as it is consistent with his service duties.  See Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus, Fast Letter 10-35 (Dep't of Veterans Affairs, Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event.).  Thus, in-service noise exposure is conceded.  Id.  Accordingly, the question remaining is one of nexus.

Based on the aforementioned evidence, the Veteran is not shown to have right ear hearing loss disability during his period of service.  There is no evidence to indicate that he was diagnosed with sensorineural hearing loss of the right ear within one year of his leaving active duty in 1968, so as to warrant service connection on a presumptive basis under 38 C.F.R. § 3.307 and 3.309.

The first diagnosis of right ear hearing loss disability under 38 C.F.R. § 3.385 was in 2004, more than 35 years after discharge.  The weight of the competent evidence does not attribute the Veteran's right ear hearing loss disability to his military service, despite his contentions to the contrary.  None of the competent evidence establishes a relationship between his hearing loss disability and active duty, nor has any treating professional suggested such a conclusion.  Specifically, the October 2012 VA examiner stated that the Veteran's right ear hearing loss disability was not related to his military service.  This opined was based on an examination of the Veteran and review of the claims file.  The examiner also cited to a medical study as noted above.  There is no medical opinion to the contrary.  Therefore, the weight of the clinical evidence does not indicate that right ear hearing loss disability is attributable to service. 

The Board acknowledges the Veteran's statements asserting continuity of hearing loss symptomatology since 1970.  The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements.  McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). 

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

In this regard, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Here, regarding the Veteran's claimed hearing loss disability, the Board concludes that the medical evidence is of greater probative value than the lay allegations.  Considering the normal hearing on testing at discharge in 1968, and the absence of competent evidence of disabling right ear hearing loss until more than 35 years after service, the preponderance of the evidence is against service connection for the claimed disability.  The Veteran himself believes that his current hearing loss disability was incurred during his active service.  However, medical expertise is required to answer the question of whether the Veteran's hearing loss disability is related to service, to include noise exposure therein and whether hearing acuity, as measured during inservice audiometric examinations, constitutes a disability for VA purposes.  The Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value.  Jandreau, supra.

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for right ear hearing loss disability, and there is no doubt to be otherwise resolved.  As such, the claim is denied.


ORDER

Service connection for right ear hearing loss disability is denied. 


REMAND

The Veteran maintains that he has left ear hearing loss disability related to his period of active duty.  The evidence of record has established his exposure to acoustic trauma during his period of active duty.

In its July 2012 Remand, the Board instructed the originating agency (in pertinent part) to obtain an opinion as to whether the Veteran's left-ear hearing loss pre-existed his service.  If yes, the examiner was to cite to the evidence of record to support that conclusion and state whether the evidence is clear and unmistakable (undebatable) as to show left-ear hearing loss pre-existed service.  If the examiner found that left-ear hearing loss disability pre-existed service, he/she was to state whether it can be concluded with clear and unmistakable (undebatable) certainty that the pre-existing left-ear hearing loss did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disease.  

Pursuant to the Board's Remand, the Veteran underwent VA examinations in August 2012 and October 2012.  The August 2012 VA examiner did not review the claims file in conjunction with the examination.  The October 2012 VA examiner found that the Veteran's left-ear hearing loss pre-existed service, but failed to provide reasons and bases or answer the remaining questions as directed in the Remand.  Given that the originating agency did not comply with the Board's Remand instructions and that the Veteran has not withdrawn his claim, another remand is required. 

Accordingly, the case is REMANDED for the following action:

1.  Return the Veteran's claims file to the examiner who conducted the October 2012 VA examination. 

Based upon the review of the Veteran's pertinent history and sound medical principles, the examiner should provide the following opinions:

a) did the Veteran's left-ear hearing loss disability pre-exist the Veteran's service?  If yes, the examiner must cite to the evidence of record to support that conclusion and state whether the evidence is clear and unmistakable (undebatable) as to show left-ear hearing loss pre-existed service.

b) if the examiner finds that left-ear hearing loss disability pre-existed service, can it be concluded with clear and unmistakable (undebatable) certainty that the pre-existing left-ear hearing loss did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disease?

c) if the examiner finds that left-ear hearing loss disability did not pre-exist service, is it at least as likely as not, i.e. 50 percent probability or greater, that the Veteran's current  left ear loss hearing loss had its clinical onset in service or is otherwise related to his military service, to include his conceded in-service noise exposure/acoustic trauma? 

If any opinion cannot be provided without resort to speculation, the examiner must provide the reasoning for that determination and clearly identify the precise facts which could not be determined. 

If the October 2012 examiner is not available, the claims file should be reviewed by another audiologist or other examiner with appropriate expertise who should be requested to provide the required opinions with supporting rationale.  Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 

2.  After the requested examination has been completed, the report should be reviewed to ensure complete compliance with the directives of this Remand.  If the report is deficient in any manner, it should be returned to the examiner.  Stegall v. West, 11 Vet. App. 268 (1998).

3.  Then, re-adjudicate the claim for service connection for left ear hearing loss disability.  If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.

By this remand the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs