Citation Nr: 1333351 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-24 460 ) 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 Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2010, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In June 2010, May 2011, and April 2013, the Board remanded the Veteran's claim to the RO via the Appeals Management Center (AMC) for additional development. The claim has been returned to the Board for further appellate consideration. In April 2012, a VA examiner found the Veteran's service-connected residuals of severed radial nerve of the right thumb, status-post repair, could be playing a role in his moderate right carpal tunnel condition. In a February 2013 written brief, the Veteran's representative argued that separate evaluations should be assigned for the Veteran's current disability as the original injury was to the ulnar and radial nerves of the Veteran's right hand. As these issues have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The competent, probative evidence does not relate the Veteran's bilateral hearing loss to active duty. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The record shows that a September 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was also notified of regulations pertinent to the establishment of an effective date and disability rating in the September 2006 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the duty to assist the Veteran has been satisfied. The record includes service treatment records, VA examination reports, VA treatment records, and lay evidence. In June 2010, the Board remanded the Veteran's claim to schedule the Veteran for a hearing at the RO before a VLJ. The record demonstrates that the Veteran testified at a Board hearing before the undersigned VLJ in October 2010. With respect to the hearing, the United States Court of Appeals for Veterans Claims (Court) held, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above 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, the Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative asked the Veteran specific questions regarding his in-service experiences and his symptoms during and following separation from service. The VLJ noted the Veteran's specific statements and indicated that he would seek to obtain any other pertinent documentary evidence not currently associated with the claims file that might substantiate the claim. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing 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 hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In May 2011, the Board remanded the Veteran's claim to provide the Veteran a VA examination to determine the nature and etiology of his bilateral hearing loss. Accordingly, the Veteran underwent VA examination in July 2011. However, the Board found the July 2011 VA examination inadequate because the rationale for the opinion was insufficient. In addition, the RO did not re-adjudicate the Veteran's claim following the VA examination. As such, the Board remanded the Veteran's claim in April 2013 for an additional VA examination and re-adjudication of the claim. Accordingly, the Veteran underwent additional VA examination in May 2013. The record demonstrates that the May 2013 VA examiner reviewed the Veteran's relevant medical history, to include his service treatment records, VA treatment records, and his lay testimony, completed a physical examination and other appropriate testing, and provided an opinion with sufficient rationale as to the clinical findings. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds the May 2013 VA examination to be sufficient and adequate for purposes of determining service connection for bilateral hearing loss. In addition, the Board finds the AMC substantially complied with the June 2010, May 2011, and April 2013 remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). There is no indication in the record that any additional evidence relevant to the claim is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The Veteran asserts that his hearing loss is the result of acoustic trauma incurred during active duty. Specifically, the Veteran contends that he was exposed to loud noises from weapons and grenades during basic and advanced individual training. In addition, he was exposed to loud noises from M-16s, 45s, and grenades during three or four weeks of guerilla training. He also asserts that he was exposed to loud noises as a military policeman, specifically from heavy equipment at checkpoints and equipment in warehouses. The Veteran reports that he was not provided with hearing protection. Following service, he was a truck driver for a year and had some exposure to loud noise with no hearing protection provided. In addition, the Veteran served as a police officer for three years and stated that he had been provided hearing protection on the shooting range and that he rarely fired his weapon, which did not produce a loud noise. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). As hearing loss is considered an organic disease of the nervous system under 38 C.F.R. § 3.309, the provisions of 38 C.F.R. § 3.303(b) are applicable in this case. VA has specifically defined the term "disability" for service connection claims involving impaired hearing. 38 C.F.R. § 3.385. "[I]mpaired 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In considering all of the evidence under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Veteran's DD-214 shows his military occupational specialty was subs storage specialist. The Veteran's service treatment records do not demonstrate complaints of, treatment for, or a diagnosis of bilateral hearing loss. On examination in May 1966, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 10 (20) - 0 (5) LEFT 5 (20) 10 (20) 0 (10) - 25 (30) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) The Veteran's April 1968 separation examination reflects, puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 - 10 LEFT 5 5 5 - 10 Preliminarily, the Board notes that conversion of the May 1966 examination findings indicate some degree of left ear hearing loss at 4000 Hertz at the time of the Veteran's entrance into service. However, as this finding does not rise to the level of impaired hearing that meets VA's criteria for consideration as a disability (cf. Hensley, 5 Vet. App. at 157), and because it is inconsistent with the separation examination, the Board will afford the Veteran the benefit of the doubt and find he is entitled to the presumption of soundness. The determination that the Veteran was sound at entrance is to his benefit and does not prejudice his claim in any way. On VA examination in July 2011, the Veteran reported that he had difficulty hearing in all situations if he was not facing the speaker. It was noted that the Veteran wore hearing aids issued by VA and stated that they were very helpful to him. The Veteran reported in-service noise exposure of M-16 and M-15 machine guns and grenades, without hearing protection, and denied post-service occupational and recreational noise exposure. The Veteran also denied a history of ear infections, ear surgeries, use of nsaid medications, dizziness, and balance problems. Audiological examination reflected puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 60 60 65 70 The VA examiner diagnosed mild to severe sensorineural hearing loss and reported that the Veteran's hearing loss had significant effects on his occupation that involved difficulty hearing but that his hearing loss did not affect usual daily activities. The VA examiner opined that the Veteran's claims file did not support the claim of noise-induced hearing loss due to service. The VA examiner based the opinion on the finding that the Veteran's April 1968 separation examination showed hearing within normal limits from 500 to 4000 Hertz for both ears. In addition, although the Veteran denied further noise exposure after service, the VA examiner found it significant that he was a police officer for two years and a truck driver. The VA examiner opined that the Veteran's hearing loss was not due to military noise exposure. Pursuant to the Board's April 2013 remand, the Veteran underwent additional VA examination in May 2013. The puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 55 60 65 70 The VA examiner diagnosed sensorineural hearing loss in the frequency range of 500 to 4000 Hertz and opined that the Veteran's hearing loss was less likely as not related to service, to include his noise exposure in service. The VA examiner reported that the enlistment and separation examinations revealed normal hearing with no significant threshold shift at any frequency. In addition, the service treatment records were silent for hearing loss and/or tinnitus complaints. The VA examiner reported that the Institute of Medicine had concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed onset hearing loss. The Institute of Medicine did not rule out that delayed onset might exist, but because the requisite longitudinal animal and human studies had not been done, and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed onset hearing loss. The VA examiner found that there was a history of noise exposure and multiple medical conditions after service that were likely associated factors of the Veteran's current hearing loss. The July 2011 and May 2013 VA examinations demonstrate diagnoses of bilateral hearing loss that meet VA's criteria for consideration as a disability. See 38 C.F.R. § 3.385. As such, the Board finds the Veteran has demonstrated a current disability of bilateral hearing loss for the purpose of service connection. First, service connection cannot be granted on a presumptive basis because bilateral hearing loss was not diagnosed until many years after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. In addition, the Board finds it probative that the Veteran first complained of hearing loss in August 2006, approximately 40 years after separation from service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, this evidence does not support continuity of symptomatology for purposes of service connection under 38 C.F.R. § 3.303(b). Furthermore, the Board notes that the Veteran has not provided a time frame for when he first began experiencing a subjective decrease in his hearing acuity. Moreover, the competent and probative clinical evidence does not support a nexus between the Veteran's current bilateral hearing loss and active duty, to include any in-service acoustic trauma. In this respect, the May 2013 VA examiner opined that the Veteran's hearing loss was less likely as not related to service, to include his noise exposure in service. The opinion was based on a thorough review of the claims file, cited the Veteran's reported in-service and post-service noise exposure, and referenced the in-service and post-service audiometric testing. In addition, the VA examiner provided outside medical literature in support of the opinion. Accordingly, the Board finds the May 2013 VA opinion carries significant probative value with respect to the requisite nexus for service connection purposes. The Board acknowledges that the Veteran is competent to testify to events and symptoms that he actually experienced or witnessed, such as in-service exposure to loud noise and difficulty hearing. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). However, a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders and disabilities, such as hearing loss. See 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the Board finds that the etiology of bilateral hearing loss is not a simple question that can be determined based on personal observation by a lay person, the Veteran's lay testimony is not competent to establish medical etiology or nexus in this case. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of bilateral hearing loss. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. Additionally, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There is no post-service evidence that relates the Veteran's bilateral hearing loss to active duty beyond his own assertions. The only competent etiological opinion of record is that of the May 2013 VA examiner, which is negative to the Veteran's claim. Based on the foregoing, the Board finds that the probative, competent evidence is against a grant of service connection for bilateral hearing loss. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs