Citation Nr: 1333502	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  11-22 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a bilateral shoulder disability.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty from January 1970 to December 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Oakland, California,  Department of Veterans Affairs (VA) Regional Office (RO).


FINDINGS OF FACT

1.  Bilateral hearing loss was not affirmatively shown to have been present during service and is unrelated to an injury, disease, or event in service or to a service-connected disability.

2.  A bilateral shoulder disability was not affirmatively shown to have been present during service and is unrelated to an injury, disease, or event in service or to a service-connected disability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).  

2.  The criteria for service connection for bilateral shoulder disability have not been met.  38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  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.  A letter sent in December 2009 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  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.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  A VA audiology examination was conducted in February 2010.  The Veteran has not argued, and the record does not reflect, that this examination report is inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).   

A VA examination was not provided with respect to the bilateral shoulder disability.  

The record contains competent evidence of a current bilateral shoulder disability.  The evidence of record does not, however, show an in-service injury or competent lay or medical evidence of any continuity of symptomatology linking the Veteran's current bilateral shoulder disabilities to service.  Rather, the Veteran offers only his own conclusory opinion regarding causation.  The Veteran's contention that his current bilateral shoulder disabilities are related to service, by itself, is not sufficient to warrant a VA examination.  There is no evidence of an in-service event, injury, or disease to which the current bilateral shoulder disability may be related.   
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim 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 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486.  

Analysis

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110, 1131. 

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 

For the conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis and for hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Hearing loss for the purpose of VA disability compensation is considered 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, 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.  

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  
To establish service connection for hearing loss, the Veteran is not obliged to show that the disability was present during active military service.  However, if there is insufficient evidence to establish that the claimed chronic disability was present during service, the evidence must establish a nexus between the current disability and the in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

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 Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Bilateral hearing loss

Service treatment records do not reflect complaints of, or treatment for, hearing loss.  

A January 1970 induction audiogram yielded the following audiometry results:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

A September 1971 separation examination yielded the following audiometry results:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
5
X
5
LEFT
0
5
10
X
10

On the Veteran's September 1971 Report of Medical History, he denied ear trouble and hearing loss.

Post-service VA treatment records from 2009 reflect a report of hearing loss in March 2010 and show the Veteran was fitted for hearing aids in July 2010.

At a VA examination in February 2010 the Veteran reported that he was exposed to noise in service from Howitzers and cannons, the mess hall, and other sources.  He also noted that after service, he had occupational noise exposure from labor-type jobs in addition to working in a saw mill for more than 8 years.  He also reported post-service recreational noise exposure from motorcycle riding.

An audiogram yielded the following audiometry results:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
15
30
60
LEFT
5
10
25
30
55

Following record review and the clinical examination, the VA examiner opined that the bilateral sensorineural hearing loss was not the result of miliary service.  Rather, it was more than likely related to the Veteran's reported occupational noise history after service, his history of diabetes, and presbycusis.  The examiner explained that this opinion was based on the Veteran's reported case history, review of his service treatment records, and the current configuration of his hearing loss.

In statements submitted in support of his appeal, the Veteran indicated that he was exposed to noise during service in his duties as a cook and from firing Howitzers in training.  

The only audiometric findings documented in service are the audiometry results at separation.  These results do not show a degree of hearing loss which meets the regulatory requirements for establishing a hearing loss "disability," according to VA regulations set forth at 38 C.F.R. § 3.385.  Thus, the Veteran is not shown to have had a bilateral hearing loss disability (for VA compensation purposes) in service.  38 C.F.R. § 3.303(a).  

Sensorineural hearing loss is listed as a chronic disease in 38 C.F.R. § 3.309(a), thus chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply.  However, symptoms of sensorineural hearing loss were not noted, that is, observed, in service, and the Veteran has not asserted otherwise.  Therefore, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. 

Nevertheless, the Veteran may establish service connection for a current hearing loss disability by submitting evidence that his current hearing loss disability is causally related to service.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993); 38 C.F.R. § 3.303(d).

The Veteran has not identified or provided competent lay or medical evidence which establishes that his current hearing loss disability is causally related to service.

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

The Veteran is competent to describe noise exposure and impaired hearing, both of which are within the realm of his personal experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  However, determining the etiology of sensorineural hearing loss is a complex question that requires medical expertise, particularly in a case such as this one where; there is a span of more than 38 years between military service and the first complaints and clinical evidence of hearing loss.  Further, there is evidence of post-service noise exposure, as well as other factors that must be considered to determine the etiology of the Veteran's hearing loss.

Service records show the Veteran denied ear trouble and hearing loss when he separated from active service in 1971.  In the various statements submitted in support of his appeal, the Veteran has never asserted that he experienced hearing loss in service, or shortly thereafter; and the post-service medical records do not show a complaint of hearing loss until March 2010.  The Veteran reported post-service noise exposure at his February 2010 examination and the audiologist at that examination determined that the Veteran's post-service noise exposure, age, and diabetes caused his current hearing loss.

As the Veteran's lay evidence is not competent evidence on the material issue of nexus, the Board looks to the medical evidence.  The medical evidence consists of the February 2010 VA examiner's opinion.  As an audiologist, the examiner is qualified through education, training, or experience to diagnose and to offer a medical opinion regarding the Veteran's hearing loss.  The VA examiner has provided a medical opinion that the Veteran's current hearing loss disability is not related to service.  The VA examiner's opinion is persuasive evidence against the claim on the question of whether the current hearing loss disability is etiologically related to service.  

There is no competent evidence that links the Veteran's current bilateral hearing loss disability to service.  

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for bilateral hearing loss is not warranted. 

Bilateral shoulder disability

The Veteran asserts that his current bilateral shoulder disabilities are due to service.  In his Notice of Disagreement, he asserted that his shoulder disabilities are directly related to having to make ammunition ready for firing, including manually loading rounds into his weapon.  He explained that this required heavy lifting and his shoulders would burn at the end of the day.

The service treatment records do not reflect evidence of an injury to either shoulder, or any complaints of shoulder pain, burning, or discomfort.  At the September 1971 separation examination, the Veteran's upper extremities were clinically normal.  On the Veteran's September 1971 Report of Medical History, he denied having painful or "trick" shoulders.  

Post-service VA treatment records show complaints of shoulder pain beginning in August 2009.  An August 2009 medical record shows a complaint of right shoulder pain that had been present for 8 months.  The Veteran was diagnosed with rotator cuff tendinosis and frozen shoulder.  X-rays performed in September 2009 revealed mild arthropathy of the acromioclavicular and glenohumeral joints and bilateral calcific tendinosis.  A clinical entry from a September 2009 orthopedic consultation shows the Veteran began complaining of pain and stiffness in his right shoulder about one year ago; the onset was gradual.  He was diagnosed with frozen shoulder, secondary to tendonitis of the rotator cuff.  A clinical entry from September 2010 shows the Veteran had a history of left shoulder pain that had been present for 1.5 years.  He was diagnosed with capsulitis and cuff syndrome.

The VA treatment records do not contain any medical opinions that any of the diagnosed shoulder disabilities are related to the Veteran's military service.

A bilateral shoulder disability was not affirmatively shown to have been present during a period of active service.  38 C.F.R. § 3.303(a).  

One of the Veteran's currently diagnosed shoulder conditions is arthritis.  Arthritis is listed as a chronic disease in 38 C.F.R. § 3.309(a), thus chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) are potentially applicable.  However, there is no competent evidence, either contemporaneous with or after service, that symptoms of arthritis were noted during service.  Moreover, the Veteran has not asserted continuity of any shoulder symptoms after service.

Service connection may be granted for disability shown after service, when all of the evidence shows that it was incurred in service.  38 C.F.R. § 3.303(d).

The Veteran contends that his shoulder disabilities are related to military service.  However, he has not identified or provided competent lay or medical evidence which supports this contention.  

The Veteran is competent to describe his current shoulder symptoms of pain and discomfort because these are readily observable through the lay senses.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  However, determining the etiology of any of his current shoulder disabilities is a complex question that requires medical expertise.  This is particularly so where there is a span of over 37 years between military service and the first complaints and clinical evidence of shoulder symptomatology.  The Veteran specifically denied having painful or "trick" shoulders when he separated from service in 1971, and the post-service VA medical records reveal that his shoulder symptoms first began around 2008.  

A determination as to the etiology of his current shoulder disabilities is a complex medical question that requires medical expertise.  The Veteran, as a layperson, is not competent to provide such an opinion and it is not argued or shown that he is otherwise qualified through specialized education, training, or experience to so do.  

There is no competent evidence showing the Veteran's bilateral shoulder disabilities are causally related to service.

The Veteran was not provided with a VA examination to determine the etiology of his bilateral shoulder disabilities.  However, as there is no evidence of a chronic bilateral shoulder condition or an acute shoulder injury in service; no competent evidence showing that any current bilateral shoulder disabilities may be linked to active service or a service-connected disability; and no reported continuity of symptomatology, an examination is necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Finally, there is no competent evidence of arthritis having manifested within a year of service discharge so as to establish service connection on a presumptive basis.  38 C.F.R. § 3.307, 3.309.  

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a bilateral shoulder disability is not warranted. 

 
ORDER

Service connection for bilateral hearing loss is denied.

Service connection for a bilateral shoulder disability is denied.



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs