Citation Nr: 1333507 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-11 220 ) 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. ATTORNEY FOR THE BOARD T. Casey, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested within one year following the Veteran's separation from service; and the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to an event, injury, or disease in service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to the initial adjudication of his claim. An April 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a VA examination (which the Board finds to be adequate) in August 2009. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. The Board has reviewed the entire record, including the Veteran's physical claims file and VA's electronic databases (Virtual VA and the Veterans Benefits Management System (VBMS)) to ensure the complete record is considered. At present, there are no documents pertinent to this appeal in Virtual VA or VBMS. Legal Criteria, Factual Background, and Analysis The Veteran contends that his current bilateral hearing loss resulted from noise trauma he sustained during active duty service. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). In order to establish service connection for a disability there must be (1) evidence of a present disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (including SNHL as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (1 year for organic disease of the nervous system). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Veteran's DD 214 shows that his military occupational specialty (MOS) was light weapons infantry, and that he received training to be a light vehicle driver. He also states that he was a gunner on a 90mm recoilless rifle. The Board finds that it may reasonably be conceded (based on the Veteran's MOS) that he was exposed to some degree of noise trauma in service. The Veteran's STRs, including reports of pre-induction and service separation examinations, are silent for complaints, treatment, or diagnoses of hearing loss. On June 1966 pre-induction examination his ears were normal on clinical evaluation. Audiometry revealed that puretone thresholds, in decibels, were: Hertz 500 1000 2000 3000 4000 Right 5 (20) 5 (15) 5 (15) 5 (15) 5 (10) Left 5 (20) 5 (15) 5 (15) 5 (15) 5 (10) (The numbers in parentheses show conversion of the findings from American Standards Association (ASA) to International Standards Organization-American National Standards Institute (ISO-ANSI) standards and are provided for comparison purposes.) On April 1968 service separation examination it was noted that the Veteran's ears were normal. Audiometry revealed that puretone thresholds, in decibels, were: Hertz 500 1000 2000 4000 Right 0 0 0 0 Left 0 0 0 0 The first postservice report of hearing loss in the record was on August 2009 VA audiological evaluation. The Veteran reported exposure to noise from 90 mm guns while serving in the infantry, and stated that he could not recall if ear protection was available. He also reported that following service, he was a truck driver and was exposed to noise from diesel engines. Audiometry revealed that puretone thresholds, in decibels, were: Hertz 500 1000 2000 3000 4000 Right 30 25 35 65 75 Left 30 30 35 55 60 Speech recognition (Maryland CNC Test) was 92 percent in each ear. The examiner reviewed the Veteran's claims file and noted that both the entrance and separation examinations showed normal hearing sensitivity at all frequencies. The diagnosis was bilateral SNHL. The examiner opined that the Veteran's "current hearing loss is less likely than not due to military noise exposure because the veteran had normal hearing at all frequencies, without even a slight notch, at discharge from the military." The examiner further opined that his hearing loss is "greater than expected from aging alone, but he did have further noise exposure as a truck driver for many years after leaving the military." On April 2010 evaluation by a private physician, the Veteran reported that he had noise exposure from weapons and vehicles in the military. Audiometry was reported in graph form, but is clear and may be reviewed by the Board. See Kelly v. Brown, 7 Vet. App. 471 (1995). It shows that the Veteran has bilateral hearing impairment that meets the definition of a hearing loss disability in38 C.F.R. § 3.385. The provider did not offer an opinion regarding the etiology of the hearing loss. Medical evidence of record (VA and private audiometry) shows that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. It is also shown, and not in dispute, that by virtue of his duties therein (consistent with his MOS) the Veteran had some degree of exposure to noise trauma in service Consequently, what remains necessary to substantiate his claim is evidence that his bilateral hearing loss is related to his service, to include as due to exposure to noise trauma therein. The Veteran's STRs are silent for any complaints, treatment, or diagnosis related to hearing loss; he has not alleged that a hearing loss disability was manifested in service. Furthermore, there is no evidence (nor is it alleged) that SNHL was manifested in the first postservice year. Therefore, service connection for the bilateral hearing loss on the basis that it became manifest during service and has persisted, or on a presumptive basis (for SNHL as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. What remains for consideration is whether the Veteran's bilateral hearing loss is somehow otherwise related to his service, to include as due to exposure to noise trauma. Whether or not a hearing loss disability is related to remote in-service noise trauma (in the absence of evidence of onset in service and continuity since) is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also be statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). The only competent (medical) evidence of record that specifically addresses whether the Veteran's bilateral hearing loss is related to his service/noise trauma therein is the report of the August 2009 VA examiner. In that report, the examiner opined that the Veteran's "current hearing loss is less likely than not due to military noise exposure because the veteran had normal hearing at all frequencies, without even a slight notch, at discharge from the military." As this opinion is by a medical professional competent to provide it, reflscts familiarity with the record, and includes rationale that cites to supporting factual data, it is competent evidence in the matter. Because there is no competent evidence to the contrary, it is persuasive. In that regard, the Board notes that while the absence of a hearing loss disability in service does not preclude service connection for such disability if the evidence of record shows that a hearing loss disability first noted after service is related to noise trauma therein (or is otherwise etiologically related to service)(see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)), here the examiner provided further rationale, explaining that while the hearing loss shown was greater than what would be expected from aging alone, the disparity was attributed to his intercurrent noise trauma from many years of work as a truck driver postservice. The April 2010 private physician's report is not probative evidence in this matter. It confirms that the Veteran has a hearing loss disability and discusses the impact of the disability on the Veteran's daily life, matters that are not in dispute; it does not include an opinion regarding the etiology of the hearing loss, i.e., the unestablished fact necessary to substantiate the claim.. The Veteran is a layperson and his own opinion in this matter is not competent evidence. He does not cite to a supporting medical opinion or medical literature. Accordingly, the Board finds that the preponderance of the evidence is against this claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hence, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The appeal must be denied. ORDER The appeal seeking service connection for bilateral hearing loss is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs