Citation Nr: 1334121 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-25 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. By that rating action, the RO, in part, denied the claims for service connection for a bilateral hearing loss disabilities. The Veteran appealed this rating action to the Board. Jurisdiction of the appeal currently resides with the Nashville, Tennessee RO. In August 2012, the Board, in part, remanded the issues on appeal to the RO for additional development. The requested development has been completed and these matters have returned to the Board for appellate consideration. Also developed for appellate consideration by the Board in August 2012 was the issue of entitlement to service connection for tinnitus. By a January 2013 rating action, the RO granted service connection for tinnitus; an initial 10 percent disability rating was assigned, effective October 15, 2007--the date VA received the Veteran's initial claim for compensation for this disability. As the Veteran has not disagreed with the initial 10 percent disability rating or the effective date assigned to the service-connected tinnitus, this issue is no longer before the Board for appellate consideration. Grantham v. Brown, 114 F. 3d 1156 (Fed. Cir. 1997). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). In May 2013, the Board requested a specialist medical opinion from the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2013). This opinion was provided by the Chief of Audiology and Speech Pathology Service at the West Palm Beach, Florida VA Medical Center (VAMC) in July 2013. A copy of the July 2013 opinion has been associated with the claims files. After the VHA report was associated with the claims file, the Veteran, through his representative, waived RO jurisdiction of this report, as well as additional evidence submitted in support of the claims. (See Veteran's representative's September 2013 written argument to VA, page (pg. 2)). Thus, the Board finds no prejudice will result in proceeding with appellate review of the claims. FINDINGS OF FACT 1. The Veteran's May 1963 enlistment examination report does not contain any notation of any chronic hearing loss disability and his ears were contemporaneously evaluated as "normal;" thus, the presumption of soundness attaches with respect to both ears. 2. Right and left hearing loss disabilities were not present during military service or for several decades thereafter and there is no competent evidence of record otherwise linking it to an incident of service origin, to include acoustic trauma. CONCLUSIONS OF LAW 1. The presumption of soundness has not been rebutted with regard to right and left ear hearing loss disabilities. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03 (July 16, 2003). 2. Right ear hearing loss disability was not incurred in or aggravated by active military service, nor may sensorineural right ear hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3,159, 3.303, 3.307, 3.309, 3.385 (2013). 3. Left ear hearing loss disability was not incurred in or aggravated by active military service, nor may sensorineural left ear hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3,159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a November 2007 letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in March 2008. Nothing more was required. The Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claims decided herein, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his service treatment records (STRs) and VA treatment and private examination records. These records have been associated with the Veteran's physical claims files, as well as his electronic Virtual VA file. The RO has also obtained all identified private treatment records. In its August 2012 remand directives, the Board specifically requested that the RO schedule the Veteran for a VA examination with an opinion to determine, in pertinent part, the etiology of his hearing loss disabilities. VA examined the Veteran that same month. A copy of the August 2012 VA examination report has been associated with the Veteran's claims files. In order to resolve outstanding medical questions surrounding the Veteran's claims, the Board requested a specialist medical opinion from the VHA to determine the etiology of the Veteran's right and left ear hearing loss disabilities in May 2013. This opinion was provided by the Chief of Audiology and Speech Pathology Service at the VAMC in West Palm Beach Florida in July 2013. A copy of the July 2013 opinion has been associated with the claims files. The VA audiologist's opinion was based on a review of the entire claims files, to specifically include the Veteran's previous audiograms, as well as medical literature. The Board finds the July 2013 VA audiologist's opinion to be adequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, the medical evidence has been thoroughly developed in this case. The Veteran was afforded a VA ear disease examination in August 2012 and a July 2013 VHA opinion from an audiologist. As explained below, the competent and credible evidence fails to support a finding that the Veteran's right and left hearing loss disabilities are etiologically related to acoustic trauma that he sustained during his period of active military service. Thus, no additional medical examination or opinion is necessary under the circumstances of this case. The Board finds that no further assistance is warranted with respect to service connection claims decided herein. VA may proceed with the consideration of the claims in the analysis below. II. Laws and Regulations Service Connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system (e.g., sensorineural hearing loss). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Presumptive Service Connection Criteria For certain chronic disorders, such as sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, this presumption is rebuttable by probative evidence to the contrary. Hearing Loss Criteria Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 (2013). The Court, citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), stated in Hensley v. Brown, 5 Vet. App. 155 (1993), that it has held the above regulation, although prohibiting an award of service connection where audiometric test scores are within established limits, does not prevent a Veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. See Hensley, supra (noting that a loss of 20 decibels or more could indicate some hearing loss, albeit not meeting the thresholds of 38 C.F.R. § 3.385)). III. Legal Analysis The Veteran contends that his current right and left ear hearing loss disabilities are the result of acoustic trauma that he sustained during military service. The Veteran maintains that he had some post-service noise exposure during his employment at a factory. He contends that he had some use of hearing protection both during and after service. (See September 2007 VA treatment report). At the outset, the Board notes that the Veteran's May 1963 enlistment examination report reflects that he had hearing loss for VA compensation purposes in both ears. An audiogram conducted during his May 1963 service entrance examination showed that the Veteran had auditory thresholds of 45 and 40 at 4000 Hertz in the right and left ears, respectively, when converted to ISO-ANSI standards. Thus, the Veteran met VA standards of right and left ear hearing loss disabilities for compensation purposes at this examination under 38 C.F.R. § 3.385. Notwithstanding the foregoing, the Veteran was inducted into military service in May 1963 without any notation from the examining clinician of any chronic hearing loss disability and his ears were contemporaneously evaluated as "normal." Thus, the Board finds that the presumption of sound condition at service entrance in 1963 attaches with respect to the Veteran's right and left ears. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). Thus, his claims of entitlement to service connection for right and left ear hearing loss disabilities are one of direct incurrence, as opposed to aggravation of a pre-existing disability. The Board finds that the preponderance of the competent evidence of record does not show that his right and left ear hearing loss disabilities for VA compensation purposes had their onset during military service or are otherwise etiologically related thereto, to include the Veteran's in-service exposure to acoustic trauma. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. See Hickson, 12 Vet. App. at 253. With respect to Hickson element (1), current disability, it is undisputed that the Veteran currently has a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Such was established at an August 2012 VA examination, which showed speech discrimination scores in both ears that were less than 94 percent (i.e., 66 and 62 percent in the right and left ears, respectively). Concerning in-service injury or disease, Hickson element (2), the Veteran's DD 214 confirms that he received a Sharpshooter Medal for service and he was a member of the 14th Armored Cavalry Division. Although his military occupational specialty was that of a Radio Mechanic, there are indications that he experienced noise exposure from artillery fire while serving in Germany. Thus, his assertions of exposure to acoustic trauma are consistent with the circumstances of his service. As such, exposure to acoustic trauma during military service is, therefore, conceded. 38 U.S.C.A. § 1154(a) (West 2002). Thus, Hickson element (2), evidence of in-service injury, has been met. Regarding the final Hickson element, medical nexus, there are two (2) VA opinions that discuss the etiology of the Veteran's right and left hearing loss disabilities for VA compensation purposes and they are against the claim. An August 2012 VA examiner and a July 2013 VA audiologist opined, after a review of the claims files, a recitation of the Veteran's history with respect to his hearing loss and a review of the above-cited STRs, that it was less likely as not (less than 50 percent probability) that the Veteran's hearing loss was caused by or a result of an in-service event. Both of these examiners reasoned that the Veteran had normal hearing at service separation in February 1965, as compared to the mild high frequency hearing loss at 4000 Hertz noted at service entrance in 1963. The July 2013 VA audiologist reasoned that the auditory threshold of 20 at 500 Hertz in right ear at service discharge in February 1965 could not be used as evidence of noise damage, but was more likely an indication of a possible conductive component to the hearing loss or poor test conditions. The July 2013 VA audiologist indicated that only changes in the high frequencies (i.e., 2000 Hertz and above) were considered significant threshold shifts due to noise. The VA audiologist concluded that the Veteran's military noise exposure had been conceded, and that if there was evidence of cochlear damage in the records, his subsequent post-service occupational noise exposure would not preclude service connection. However, the July 2013 VA audiologist determined that this was a moot point given the fact that the Veteran had normal hearing at discharge. The above-cited VA examiners' opinions are consistent with the Veteran's service treatment records. Notably, his February 1965 service discharge examination report reflecting that the Veteran had normal hearing, despite evidence of 20 decibels at 500 Hertz. The Board emphasizes that it considers the August 2012 and July 2013 VA medical opinions to be competent, well-supported and essentially uncontroverted evidence against the claims. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting a veteran's position); Lee v. Brown, 10 Vet. App. 336, 33 (1997) (an etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words). Moreover, as there is there is no evidence of any hearing loss for VA compensation purposes within a year of the Veteran's discharge from active service in May 1965, respectively, service connection for right and left ear hearing loss disabilities on a presumptive basis is also not warranted. 38 C.F.R. §§ 3.307, 3.309. IV. Conclusion The Veteran has not contended that he has experienced hearing loss from active service through the present time. His service treatment records include no reference to complaints of hearing loss. The Veteran denied having had any ear trouble on Report of Medical History accompanied with the February 1965 service separation examination. On 1AA Form 572, Statement of Medical Condition, the Veteran indicated that there had not been any change in his medical condition since he was last examined (i.e., February 1965). VA received the Veteran's initial claim for service connection for hearing loss disabilities in October 2007). That claim coincided with a September 2007 VA treatment report showing that the Veteran had complained of decreased hearing in his left ear after he had answered the telephone one day previously. An impression of "sudden sensorineural hearing loss" was entered. The combination of decreased hearing in all auditory thresholds from 500-4000 Hertz from service entrance to separation, especially at 4000 Hertz, bilaterally, and an absence of any medical records of a diagnosis or treatment of a hearing loss disability, bilaterally, for VA compensation purposes for many years after service (August 2012) weighs against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weight heavily against the claim). The Board notes that the Veteran, as well as his friend, C. W., are competent to describe his symptoms of hearing loss, or observations thereof, since he was discharged from military service. The Veteran is equally competent to identify stressful events that occurred during his period of active military service. However, neither the Veteran or C. W. have been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). No competent professional has opined that the Veteran's right and left ear hearing loss disabilities for VA compensation purposes are etiologically related to his in-service acoustic trauma. There is no competent or probative evidence of record that is in support of the claims. The Veteran's right and left ear hearing loss disabilities were not noted at his physical examination for service entrance. They have not been objectively shown to be etiologically related to his in-service exposure to acoustic trauma or to have manifested to a compensable degree within a year of service discharge in December 1965. Therefore, the Board concludes that service connection for right and left ear hearing loss disabilities is denied. ORDER Service connection for a right ear hearing loss disability is denied. Service connection for a left ear hearing loss disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs