Citation Nr: 1334140 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-07 890 ) 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 Appellant represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from October 1956 to October 1958. He also reportedly had service with the Navy Reserve from 1976 to 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which inter alia denied service connection for bilateral hearing loss. The claim was remanded by the Board in March 2013 for additional development. 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). FINDING OF FACT A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year. CONCLUSION OF LAW Bilateral hearing loss was not incurred or aggravated in service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In a letter issued in April 2008, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the April 2008 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. Additionally, the Veteran was provided a VA examination and opinion in July 2008, May 2009, and April 2013 for his service connection claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the VA medical opinions obtained in this case are adequate, as they are predicated on a full reading of the service treatment records as well as the VA medical records contained in the Veteran's claims file. The examiners considered all of the pertinent evidence of record, to include the Veteran's statements, and provided a complete rationale for the opinions stated, relying on and citing to the evidence reviewed. The April 2013 examiner found that an opinion could not be provided without resort to speculation and that, in the absence of documentation or objective evidence of hearing loss in service, there is no additional evidence that would permit the opinion to be rendered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the bilateral hearing loss issue on appeal has been met. 38 C.F.R. § 3.159(c)(4); see Jones v. Shinseki, 23 Vet. App. 382 (2010). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant records have been reviewed and considered herein. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. 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"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis Bilateral hearing loss has been demonstrated in the claims file multiple times since a November 2005 VA audiogram demonstrated bilateral hearing thresholds above 40 decibels at 4000 Hertz. The Veteran contends that he incurred hearing loss as a result of in-service acoustic noise exposure from aircraft and boiler room noise. He is competent to report his in-service noise exposure. His statements regarding such noise exposure are consistent with the conditions of his service as an electrician's mate in the Navy, and are credible. Therefore, two of the three elements necessary for service connection-current bilateral hearing loss and an in-service injury-are thus demonstrated. However, service connection also requires a nexus between a current disability and such in-service noise exposure. Service treatment records are negative for any complaints or treatment of hearing loss, despite the fact that the Veteran reported the symptoms of other disabilities repeatedly on several reports of medical history. Service treatment records do not demonstrate that an audiogram was conducted during service. The record is silent for any post-service evidence of hearing loss for about 20 years after his discharge from Reserve service and more than 46 years after his discharge from his original period of active duty service. It wasn't until the November 2005 VA audiology consultation that hearing loss was first reported or demonstrated upon examination. During the July 2008 VA examination, the Veteran reported that he first noticed hearing loss about five years prior, which would place onset well after his discharge from service. He denied post-service recreational or occupational noise exposure. Based on the record, the examiner stated that an etiology opinion could not be provided without resort to speculation. In May 2009, the same VA examiner provided a new VA examination and reviewed the claims file again. This time, the Veteran admitted to post-service occupational noise in the form of aircraft noise about once per week without hearing protection for 21 years. The Veteran again reported that he had had hearing loss for about five years. Based on the complete record, the examiner again stated that an opinion as to etiology could not be provided without resort to speculation because while the Veteran reported significant in-service noise exposure, he reported onset to only be five years prior and he also now reported post-service noise exposure. In its March 2013 remand, the Board noted that if an examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner must also state whether there was additional evidence that would permit the opinion to be rendered. Neither VA opinion included that information. A new VA opinion was ordered and provided in April 2013. A new VA examiner cited the Institute of Medicine report, Noise and Military Service- Implications for Hearing Loss and Tinnitus, for the conclusion that if documentation of the existence of hearing loss at discharge from the military is missing, it is nearly impossible to determine whether hearing loss later in life is the result of noise exposure during military. Therefore, the examiner concluded, as valid hearing tests were not conducted at discharge, the Veteran reported onset after separation, there is no objective evidence of hearing loss during service, and there are other potential etiologies, including aging and occupational noise exposure, the issue could not be resolved without resort to mere speculation. Moreover, in the absence of objective evidence of hearing loss in service, there was no additional evidence that would permit the opinion to be rendered. The Veteran has asserted that there is a nexus between the current hearing loss and in-service noise exposure; however, the record does not show that he has the medical expertise to opine that one form of noise exposure caused his hearing loss rather than another. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, the Veteran denied post-service noise exposure during VA treatment and the first VA examination before reporting it during the second VA examination. As noted above, he admitted to post-service noise exposure without hearing protection for 21 years post-service. Finally, he reported the onset of hearing loss to be around 2003 at the earliest (5 years before the 2008 VA examination), which would have been during his post-service noise exposure and more than 20 years post-discharge. The Veteran is competent to describe the presence of hearing loss and the date of its onset. However, even if the Board found his statements to be credible despite the discrepancies, they do not place the onset of hearing loss until many years after service. The Veteran is not competent to determine the cause of hearing loss, i.e., in-service acoustic trauma. It would require medical expertise to say that the current hearing loss, first reported long after service, was the result of in-service noise exposure, rather than the long history of post-service noise exposure. There is no competent opinion in favor of the claim and two VA examiners have found that such an opinion cannot be rendered in this case. Given the lack of medical evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran's current hearing loss and in-service noise exposure. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs