Citation Nr: 1334041 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-25 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1992. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2011 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans' Affairs (VA). Although this decision denied service connection for both left and right ear hearing loss, the Veteran only filed an appeal in relation to the left ear. On his September 2011 Form 9, the Veteran requested a Board hearing at the RO. A hearing was subsequently scheduled for May 10, 2012. However, on May 9, 2012, the Veteran's representative informed VA that the Veteran would not be attending the scheduled hearing. No request to reschedule the hearing was made. Consequently, the Veteran's hearing request is considered withdrawn. FINDING OF FACT Left ear hearing loss disability was not shown in service and the Veteran's current hearing loss is not shown to be related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) 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 Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). A July 2009 letter explained the evidence necessary to substantiate the claim and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the Board notes that the Veteran's original service treatment records have been determined to be unavailable. The Veteran was informed of this and he submitted copies of a portion of these records (i.e., the records he had in his possession). This information does not include an entrance examination report with any accompanying audiological testing that might have been performed. There is no indication that such information, if it existed, is available from any other source. Also, given the absence of this information, VA has appropriately assumed that the Veteran was audiologically sound upon entry into service. Consequently, any increase in hearing thresholds from this assumed baseline has been considered to be the result of noise exposure in service. Thus, the Veteran was not prejudiced by VA not being able to review any audiological findings made at the time of service entrance and more broadly was not prejudiced by review of only a portion of the service treatment records. The claims file also contains post-service medical records from the 88th Medical Group, including an outpatient audiological assessment from July 2009, the reports of a VA audiolgical examination with subsequent etiology opinions, and the assertions of the Veteran and his representative. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain listed, chronic disabilities, including diabetes, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is considered one of these "chronic" diseases. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding this claim, the Board must determine the probative value of all of the evidence submitted, so of both the lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is "credible", or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board additionally must determine whether the evidence also is credible). Only if the evidence is both competent and credible does it ultimately have probative value. 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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means 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). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007). In certain instances, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The available service treatment records do not include an entrance examination report. The Board thus presumes that the Veteran had normal hearing upon entry into service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. At a September 1990 examination, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 10 15 LEFT 10 10 10 20 25 On his April 1992 report of medical history, the Veteran indicated that he had not had any prior problems with hearing loss or ear, nose and throat trouble and was not currently experiencing such problems. On an earlier September 1990 report, he appeared to indicate that he did not know whether he experienced such problems. At his April 1992 retirement examination, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 5 10 LEFT 10 20 10 15 25 The Veteran was noted to have a "moderate mixed frequency hearing loss" in both ears. A November 1999 VA audiological evaluation appeared to show high frequency hearing loss above 4000 Hertz in the left ear and above 7000 Hertz in the right ear. The Veteran reported difficulty hearing in noise. A July 2009 88th Medical Group audiological evaluation showed hearing within normal limits in the right ear from 250 Hertz to 3000 Hertz with mild to moderate sensorineural hearing loss from 4000 to 8000 Hertz and hearing within normal limits in the left ear from 250 Hertz to 2000 Hertz with mild to moderate sensorineural hearing loss from 3000 to 8000 Hertz. Speech recognition scores were 100 percent in the right ear and 96 percent in the left ear. The Veteran reported difficulty hearing over background noise and that his hearing was getting progressively worse, with the left ear seeming to be worse than the right. He also reported a high level of environmental noise at work previously and acoustic trauma from guns and machinery. In an August 2009 statement, the Veteran indicated that he believed he sustained his hearing loss while firing a .45 pistol at the Marine Corps firing range in 1967 without hearing protection and working on spaces on Naval ships adjacent to areas where pneumatic paint chippers were used for extended periods, also without hearing protection. At a May 2010 VA audiological evaluation, audiometry revealed that puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 30 30 LEFT 15 20 20 35 50 The average puretone thresholds were 22.5 decibels, right ear, and 31.5 decibels, left ear. Speech audiometry revealed that speech recognition was 100 percent in both ears. The diagnosis was normal hearing through 2000 Hertz, sloping to moderately severe sensorineural hearing loss bilaterally. The Veteran reported military ship and artillery noise during service without hearing protection and denied any post service occupational or recreational noise exposure. He reported noticing bilateral hearing loss sometime in the 1970s. As the claims file was not available, the examiner commented that she could not resolve the issue of whether the Veteran's current hearing loss was related to service without resort to speculation. In an August 2010 supplemental opinion, the May 2010 examiner indicated that she had reviewed the claims file. She noted that the Veteran's hearing in September 1990 was normal in the right ear with a borderline normal finding at 6000 Hertz and was normal in the left ear with borderline normal findings at 3000 to 4000 Hertz and mild hearing loss at 6000 Hertz. Also in April 1992, hearing was normal in both ears but borderline normal at 1000 Hertz and 4000 to 6000 Hertz in the left ear. Also in November 1999, the Veteran's hearing was normal with mild to moderate sensorineural hearing loss at 8000 Hertz in the right ear and normal through 4000 Hertz in the left ear, then sloping to moderate sensorineural hearing loss. Additionally, in July 2009, hearing was normal through 3000 Hertz in the right ear, sloping to moderate sensorineural hearing loss and normal through 2000 Hertz in the left ear, sloping to moderate to severe sensorineural hearing loss. The examiner indicated that when the Veteran was tested in April 1992, about two months prior to discharge, he presented with normal hearing in both ears. The test did show borderline normal hearing at 1000 and 4000 to 6000 Hertz in the left ear, indicating that a moderate mixed frequency hearing loss actually was not found on the retirement examination. There was no examination from when the Veteran entered service in "1976"; therefore, it was unknown whether or not there were threshold shifts. It was possible that the Veteran entered the service with the borderline normal thresholds and it was possible that the shifts occurred while in the service secondary to military noise exposure. The borderline normal hearing thresholds were at least as likely as not due to combat noise exposure. Once the Veteran got away from the military noise exposure, his hearing would not have continued to get worse after the fact. Therefore, the current hearing loss was not due to combat noise exposure. In a May 2011 addendum opinion, the examiner noted that while there was no entrance examination available, the Veteran actually entered the Navy in September 1965. Assuming that the Veteran's hearing was within normal limits upon entrance into service, then only slight changes occurred in the left ear and no significant changes occurred in the right ear. Upon discharge from service, the Veteran's hearing showed a slight decrease in the left ear at 1000 hertz and at 4000 to 6000 hertz. No hearing loss was technically found in either ear, though, because the threshold changes that occurred in the left ear went from normal to borderline normal. Therefore, it was the examiner's opinion that the Veteran's current hearing loss was not due to his many years of naval noise exposure or due to the progression of hearing loss seen at discharge. The examiner indicated that delayed onset hearing loss did not occur; therefore, any changes in hearing after the service could not be attributed to past military noise exposure. The evidence clearly indicates that the Veteran has a current left ear hearing loss disability by VA standards, shown by the May 2010 VA examination. The evidence also clearly shows he experienced noise exposure in service. However, the evidence does not establish that such hearing loss disability was present in service or during the first post-service year, or that it is otherwise related to service, including noise exposure therein. Although the Veteran was noted to have a "mixed hearing loss" at April 1992 retirement examination, as noted by the VA examiner, in her May 2011 opinion, this loss did not constitute a hearing loss disability by VA standards. 38 C.F.R. § 3.385. Also, the VA examiner ultimately concluded in her May 2011 addendum opinion, after accurate review of the claims file, that the Veteran's current hearing loss disability was not due to his many years of naval noise exposure or to the progression of hearing loss seen at discharge. The examiner provided a sufficient rationale for this finding by recognizing the Veteran's noise exposure in service but noting that at his retirement examination, the Veteran did not have a left ear hearing loss disability by VA standards and that in her medical opinion, delayed onset hearing loss (i.e. loss occurring subsequent to the actual noise exposure) simply does not occur. Therefore, any changes in hearing, which occurred after service could not be attributed to past military noise exposure. There is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the Veteran's current hearing loss disability is related to his noise exposure in service). Also, as a layperson, with no demonstrated expertise related to discerning the etiology of hearing loss, the Veteran's opinion concerning such loss is related to service cannot be afforded more than minimal probative value. See Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly, given that a left ear hearing loss disability by VA standards was not shown in service or during the year following service, and given that the Veteran's current hearing loss is not shown to be related to service, an award of service connection for such disability on a direct or presumptive basis is not warranted. 38 C.F.R. §§ 3.303, 3.385. The preponderance of the evidence is against this claim and it must be denied. Alemany, 9 Vet. App. 518 (1996). ORDER Service connection for left ear hearing loss is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs