Citation Nr: 1335257 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-25 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1954 and from June 1957 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2012, the Veteran and his wife presented sworn testimony during a hearing in Nashville, Tennessee, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In Board decisions dated in October 2012 and July 2013, the claim was remanded for further evidentiary development. As will be discussed below, review of the record reflects substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial of service connection in an August 2013 supplemental statement of the case (SSOC). The Board notes that the Veteran's original claim included hearing loss of both the left and right ears. The claim was remanded by the Board in October 2012. By a June 2013 rating decision, service connection was granted for left ear hearing loss and a noncompensable disability rating was assigned. That service connection matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDING OF FACT The Veteran does not have right ear hearing loss that is attributable to his military service. CONCLUSION OF LAW The Veteran does not have right ear hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 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 Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & West Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2013); 38 C.F.R. § 3.159(b) (2013). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (April 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) With respect to the right ear hearing loss claim, a pre-decisional notice letter in August 2009 as well as a subsequent December 2011 letter complied with VA's duty to notify the Veteran with regard to this issue. In particular, these letters apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letters also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist as to the claim on appeal, the RO obtained the Veteran's service treatment records (STRs), available service personnel records, and Social Security Administration (SSA) records, as well as, VA and private treatment records in furtherance of his claim. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that needs to be obtained. Thus, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. There is no indication that any additional action is needed to comply with the duty to assist. Pursuant to the July 2013 Board remand, the Veteran was afforded a VA examination in August 2013. The medical opinion provided at the conclusion of the examination reflects that the VA examiner thoroughly reviewed the Veteran's past medical history, documented his condition, reviewed the pertinent periodicals identified by the Veteran, and rendered an opinion that is consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the August 2013 VA examination report is sufficient for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also 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). Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, the Veteran claims that he developed right ear hearing loss that began during his military service. Specifically, he asserts that he sustained acoustic trauma as a result of exposure to long hours of jet engine operations during his service in the Air Force. See the Veteran's statement dated May 1993 and the July 2012 Board hearing transcript, pg. 28. In this case, it is undisputed that the Veteran has been found to have current hearing impairment for VA compensation purposes in the right ear. See the VA examination reports dated August 2013, December 2012, and May 2011. As described above, the Veteran served on active duty from September 1952 to September 1954 and from June 1957 to June 1960. His MOS was field maintenance squadron, which is consistent with his description of in-service exposure to jet engine noise. Accordingly, acoustic trauma as contended by the Veteran is conceded based on the circumstances of his military service. The Veteran's STRs, including his September 1954 and May 1960 separation examinations, are absent any indication of right ear hearing loss. To this end, the Board notes that the audiogram associated with the Veteran's May 1960 separation examination documented normal pure tone thresholds bilaterally, except at 4000 hertz in the left ear (30 decibels). A VA examination administered in November 1960 did not document any hearing abnormalities. In a May 1993 statement, the Veteran asserted bilateral hearing loss due to in-service noise exposure. He submitted private audiometry records dated in August 1993, which suggested bilateral hearing loss. The Veteran was afforded a VA examination in July 1996. In the examination report, the examiner noted the Veteran's report of acoustic trauma due to sustained jet engine noise during his second period of military service. The examiner conducted audiometric testing and diagnosed the Veteran with profound sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left ear. The examiner noted "[a]s the patient's service separation hearing test indicated hearing within normal limits bilateral except at a single frequency in the left ear...it is highly unlikely that the present severe to profound hearing loss in the right ear and moderate to severe hearing loss in the left ear [are] due to military noise exposure as hearing loss resulting from that noise exposure would have been eviden[t] at the time of his service separation hearing test in May 1960." In a September 1996 report, Dr. J.W. documented the Veteran's profound sensorineural hearing loss in the right ear. He noted, "[o]n review of the chart, it would be highly unlikely that this hearing loss is due to noise exposure, as he had an essentially normal audiogram when he was discharged in 1960. The only other factor is the one of hereditary facts, in which his father had a hearing loss. I do not feel his hearing loss is from serving in the military." VA treatment records documented the Veteran's continued use of hearing aids bilaterally. See, e.g., the VA treatment record dated October 2009. The May 2011 VA audiology examination documented a continuing hearing loss. The examiner did not render an opinion as to medical nexus to military service. In this matter, there is no competent medical evidence that a sensorineural hearing loss of the right ear manifested within one year of the Veteran's discharge from active service. 38 C.F.R. § 3.307, 3.309. The Board recognizes that treatment providers have documented the Veteran's claimed fifty-year history of hearing loss. See, e.g., the VA treatment records dated July 2002. However, to the extent that such statements are offered as evidence of medical nexus, these records simply documented the contentions of the Veteran and, therefore, are not probative as to etiology. See Leshore v. Brown, 8 Vet. App. 406, 409 (transcriptions of lay history unenhanced by any medical comment by an examiner are not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). In support of his claim, the Veteran has identified two articles from the Journal of Neuroscience that he claims support his contentions that his currently diagnosed hearing loss can, at least in part, be traced to in-service noise exposure. The Board remanded the Veteran's claim in order for these articles to be addressed by a VA examiner. Pursuant to the October 2012 remand, the Veteran was afforded a VA audiological examination in December 2012, at which time the VA examiner concluded that she was unable to provide an opinion concerning medical nexus because she was unable to review the claims file. Accordingly, a VA addendum opinion was provided in May 2013 after the examiner reviewed the file. Unfortunately, rather than addressing the questions posed in the Board's October 2012 remand, the examiner concluded as to the right ear hearing loss, "[b]ased on review of c-file including SMR and the fact that no hearing loss was present in the right ear at the Veteran's 1957 enlistment or at the separation examination in 1960 nor did any significant threshold shifts occur, right hearing loss is deemed less likely as not (less than 50/50 probability) caused by or a result of military noise exposure." Accordingly, as the examiner failed to address the Veteran's competent contentions of post-service hearing loss symptoms as well as the two Journal of Neuroscience articles, the Board again remanded the Veteran's claim for a VA medical opinion. The Veteran was afforded another VA examination in August 2013. As to the question of medical nexus, the August 2013 examiner concluded that "[r]ight ear hearing loss is deemed less likely than not caused by or the result of military noise exposure." In support of her conclusion, the examiner explained that "[h]earing was normal in the right ear at the Veteran's final separation exam in 1960. There was no evidence of any significant threshold shifts in the right ear hearing when comparing the first available 1957 audiogram to the separation audiogram. Per IOM, there is no scientific evidence to support delayed onset hearing loss due to noise exposure. Based upon this rationale, right ear hearing loss is deemed less likely than not caused by or the result of military noise exposure." The examiner also addressed the Veteran's assertions of continued hearing problems following service: "[t]he Veteran had normal hearing in the right ear at separation; therefore, the Veteran's assertion of hearing problems since service cannot be attributed to a right ear hearing loss. He demonstrated, however, hearing loss in the left ear at the time of separation, and this can explain his perception of hearing problems since service." Additionally, the August 2013 examiner addressed the two Journal of Neuroscience articles identified by the Veteran. She explained, "[t]he February 2006 article does not provide any conclusive evidence for delayed onset of hearing loss as demonstrated in pure tone testing in human subjects." She continued, "[t]he November 2009 article concludes that slight shifts in hearing caused by noise exposure can result in neural degeneration that may exacerbate age-related hearing loss in mice. Because there is no evidence that the Veteran experienced any shifts in hearing and because this is a single article citing evidence in non-human subjects, this does [not] provide adequate support for the Veteran's claim of right ear hearing loss being caused by military service." The August 2013 VA examiner's opinion appears to have been based upon a review of the record and analysis of the Veteran's entire history, including his in-service experience as recounted by the Veteran himself, as well as the journal articles submitted by the Veteran. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The Board is mindful of the finding in Hensley v. Brown, 5 Vet. App. 155 (1993), in which the Court stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. However, as noted by the VA examiner, there is no clinical evidence of hearing loss for many years after the Veteran's June 1960 military discharge. The Board has considered the Veteran's assertions that he has had right ear hearing loss since his active service. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board finds that the reported history of continued symptoms since active service is inconsistent with the clinical evidence of record, which shows an absence of complaint of or treatment for right ear hearing loss for decades after the Veteran's military service. More importantly, the August 2013 VA examiner's opinion, which was based in part on the Veteran's history, is more persuasive as to whether disability is attributable to military service than the Veteran's account of when it began. Indeed, the examiner explains that the Veteran's perception of hearing loss since military service is accounted for by the left ear loss. The examiner's comments lead to a reasonable conclusion that the Veteran could not have in fact noticed hearing loss in the right ear at separation from service because the contemporaneous audiometric testing showed that he had normal hearing in that ear. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the claim that current right ear hearing loss is related to active military service. Thus, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for right ear hearing loss is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs