Citation Nr: 1335168	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  10-19 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Chance, Associate Counsel





INTRODUCTION

The Veteran served on active duty with the United States Air Force from May 1964 to October 1984.

This matter come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Denver, Colorado, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for a bilateral hearing loss disability. The issue was previously remanded in October 2012 for a VA medical etiology opinion. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran testified before the undersigned Veterans Law Judge at a travel board hearing held in Denver, Colorado in August 2012. A transcript of the hearing is associated with the claims file.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either substantively duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDING OF FACT

A bilateral hearing loss disability was not shown in service or within the first post-service year, and has not been shown by competent evidence to be related to a disease or injury of service origin.



CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.385 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

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, 3.159 and 3.326(a).

Under VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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 Veteran is expected to provide. See also 38 C.F.R. § 3.159(b)(1).

A VCAA letter dated in November 2007 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  The Veteran was advised of the evidence necessary to substantiate a claim for service connection and that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). Therefore, the Board finds that the duty to notify has been satisfied.

The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical treatment records from the Denver VAMC have been obtained and associated with the claims file. The Veteran has at no time referenced outstanding private medical records that he wanted VA to obtain or that he felt were relevant to the claim. 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).  

As noted above, the Veteran testified at a hearing in August 2012 before the undersigned Veterans Law Judge (VLJ). During the Board hearing, the Veteran was assisted by an accredited representative from the Military Order of the Purple Heart. The representative and the VLJ asked questions regarding the onset and symptoms of his hearing loss disability. The hearing focused on the elements necessary to substantiate the claim for service connection, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. The Veteran has not contended that the VLJ did not comply with 38 C.F.R. § 3.103(c) and he has not contended that he was prejudiced in any way in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). A VA examination was conducted in March 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

The March 2010 examiner performed all of the required audiology testing needed to determine the existence of a hearing loss disability. As will be discussed in greater detail below, the examiner's diagnosis and opinion was based on review of the claims file and available medical records, the Veteran's reported medical history and current symptoms, and audiology results. Additionally, the Board remanded the issue of service connection for bilateral hearing loss in October 2012 requesting an addendum VA medical opinion specifically addressing the possibility of a relationship between the Veteran's current bilateral hearing loss and his in-service noise exposure and treatment for otitis externa/media during service. The November 2012 addendum opinion provided supporting rationale upholding the previous March 2010 opinion. The Board, therefore, finds the March 2010 and November 2012 VA examination reports and opinions to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for a bilateral hearing loss disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

There is no indication in the record that any additional evidence, relevant to the Veteran's bilateral hearing loss service connection claim is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The Veteran has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. Accordingly, the Board will address the merits of the claim.

Merits of the Claim

The Veteran contends that he has suffered from gradual bilateral hearing loss since his active military service and therefore is entitled to service connection. For the reasons that follow, the Board finds that the preponderance of the evidence is against a finding that the Veteran had bilateral hearing loss during service or continuously since that time, or that any current bilateral hearing loss disability is otherwise related to service. The Board concludes that service connection for a bilateral hearing loss disability is not warranted.
Law and Regulations- Service Connection

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).

If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. Service connection for sensorineural hearing loss will rebuttably be presumed if it manifests to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.307, 3.309(a); see also M21-1MR III.iv.4.B.12.a ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a).").  Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period).  Service connection may also be granted for a disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d).

The determination of whether a Veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz  (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley  v. Brown, 5 Vet. App. 155, 160 (1993).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1). 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). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Analysis

The Veteran contends that he has suffered from gradual bilateral hearing loss since his military service. Specifically, he alleges that he was exposed to excessive noise exposure during his tour of duty in the Republic of Vietnam, that he sought medical treatment for hearing problems (otitis externa and media) during service, that there was a slight change in his hearing acuity from 1963 to 1974, and that his wife noticed his diminished hearing capabilities in the 1970's. Therefore, he believes that he is entitled to service connection for his current bilateral hearing loss disability.

In the instant case, the Veteran has a current diagnosis of bilateral sensorineural hearing loss, consistent with VA regulations. This diagnosis was rendered during a VA examination conducted in March 2010. Thus, a current disability is well established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

The next requirement of direct service connection is that the Veteran must have suffered an in-service injury or disease. The Veteran contends that he was exposed to excessive noise exposure from artillery, demolitions, explosions, weapons fire and flight line noise during his tours in the Republic of Vietnam. He further contends that hearing protection was not always practical or made available. In light of the Veteran's duties in Vietnam, the Board will presume that the Veteran's allegations of excessive noise exposure are true because it is consistent with his service and duties. Therefore, his noise exposure during service is conceded. Additionally, the Veteran alleges that he sought treatment during active service for otitis media and externa. Review of the Veteran's service treatment records reveal treatment for such. Therefore the second element of service connection is satisfied- an in-service injury or disease.

Therefore, this case turns upon the existence of the third requirement of service connection- a "nexus" or relationship between the Veteran's current bilateral hearing loss disability and the noise exposure during active service and/or the otitis media and externa suffered from during service. In support of his claim for service connection for his bilateral hearing loss disability, the Veteran offered lay statements through credible testimony during the August 2012 Board hearing that there was a slight change in his hearing capabilities from 1963 (prior to service) to 1974. Further, he testified that his wife began to notice a problem with his hearing in the 1970's when she would speak to him, and he would not know that she had said anything to him. Lastly, the Veteran testified that he was never exposed to any acoustic trauma or noise exposure post military service. He worked for IBM for 23 years after service in the computer field and then became a food handler.

The Board finds that the Veteran's testimony is credible because there is nothing in the record that directly contradicts his statements. However, while the Veteran is competent to report the symptoms that he experienced and his difficulty hearing during and post military service, he is not competent to diagnosis a hearing loss disability during service nor is he competent to provide the etiology of his current hearing loss disability. The Veteran lacks the required knowledge and specialized skills to do so. Specifically, the Veteran's allegation of a slight change in hearing acuity from 1963 to 1974 being evidence of a relationship between his current hearing loss disability and his military service is unsupported. Again, this is a medical question of some complexity of which the Veteran is not competent to address. 

Next, the Veteran testified that his wife noticed a problem with his hearing in the 1970's because she would speak to him and the Veteran would not know that she had spoken. While this is credible evidence of the wife's observation, it is not evidence of a cause of the Veteran's current hearing loss disability. Furthermore, the Veteran himself testified at the Board hearing that he believed he was "doing okay" and did not recognize a problem with his hearing ability during such time.

Finally, the lack of evidence of post military noise exposure does not itself provide a causal link between the current disability and the Veteran's military service. 

Upon review of the Veteran's service treatment records, treatment in August 1966 for pain and inability to hear in his right ear was indicated. Notes reveal that the right ear canal was swollen and inflamed and that the diagnostic impression was otitis externa. The Veteran was seen again in December 1966 and April 1967 for bilateral external otitis and otitis media. The remainder of the Veteran's service treatment records, covering the next 10-15 years, are negative for any reports of ear or hearing difficulties or treatment for such. In fact, the Veteran considered his health to be "excellent" during his 1977 examination and indicated such on his report of medical history. The Veteran's hearing acuity at the time of discharge was normal. Therefore, the Board finds that the isolated incidents of otitis externa/media appeared to resolve with no residuals.

The Veteran's VA medical records have been reviewed and only show minimal consultation and treatment for audiology concerns. Specifically, medical records from June to August 2009 show that the Veteran was considered to be a candidate for the VA hearing aid program, that a hearing aid fitting appointment was conducted, and isolated maintenance appointments for the devices. The assessment results revealed that the Veteran's speech recognition was "excellent" bilaterally at 96% and 100% for the right and left ears, respectively. The puretone threshold results in June 2009 were as follows: (in decibels)


500Hz
1000Hz
2000Hz
3000Hz
4000Hz
Left
50
45
50
50
45
Right
50
45
45
50
50

Recent treatment records from June 2011 indicate that the Veteran's hearing aids are functioning well.

The Veteran was afforded a VA audiology examination in March 2010 to determine the existence of a current hearing loss disability and, if present, the etiology of such. The VA examiner, a licensed audiologist, reviewed the Veteran's claims file and his medical history. She performed the required puretone threshold and Maryland CNC testing and the results were as follows: (in decibels)


500Hz
1000Hz
2000Hz
3000Hz
4000Hz
Left
40
45
45
40
40
Right
50
50
40
45
40

The speech recognition scores were 96% and 100% in the left and right ears, respectively. The examiner diagnosed mild to moderate bilateral sensorineural hearing loss and opined that the current hearing loss was not caused by or a result of his military noise exposure because "at the time of discharge, a hearing test revealed hearing within normal limits for both ears." The Board remanded the claim in October 2012 requesting an addendum medical opinion addressing the possible nexus to service, considering the conceded noise exposure and the treatment for otitis media/externa. The addendum opinion was provided in November 2012. The examiner reviewed the claims file, including the March 2010 examination report, and opined that it was unlikely that the Veteran's current bilateral hearing loss is related to his in-service treatment for otitis media/externa because he has no conductive hearing loss, which usually results from such. The Veteran has sensorineural hearing loss- not conductive. Furthermore, she opined that the Veteran had normal hearing at the time of discharge, no residuals with the otitis media/externa condition- which does not usually result in permanent hearing loss, and a normal ear otoscopic examination in March 2010. 

In assessing the weight of the available evidence, the Board finds that the March 2010 VA examination and the November 2012 VA addendum medical opinion consisted of the expertise, knowledge, and skills of licensed medical professionals, the required audiology testing to determine the existence of a hearing loss disability, and well-reasoned rationale for the opinion provided, supported by the Veteran's relevant medical history, review of the claims file, and skill in thoroughly analyzing the test results. Also, unlike what the Veteran's lay evidence is capable of offering, the November 2012 examiner provided a definitive opinion as to the lack of a relationship between the current hearing loss disability and military service, which addressed the lapse of time, the fact that the Veteran suffers from sensorineural, and not conductive hearing loss, the prior in-service treatment for otitis externa/media and the noise exposure during active service.

As such, the Board finds that the VA medical opinions regarding the etiology of the Veteran's current bilateral hearing loss disability to be highly probative and clearly outweighs the lay evidence provided by the Veteran.

For the sake of completeness, it is noted that hearing loss is considered to be a chronic disease for VA purposes (See 38 C.F.R. § 3.309(a)), and would be subject to presumptive service connection if it were shown within one year from separation of service. Although there is a presence of current bilateral hearing loss, there is no documentation of a hearing loss disability within the first post-service year or for many years thereafter. As such, service connection for a bilateral hearing loss disability on a presumptive basis is not for application.

For the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that there is a relationship between the Veteran's current bilateral hearing loss disability and his military service. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

(Continued on next Page.)






ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs