Citation Nr: 1335478	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  12-28 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

 R. Chakraborty, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1966 to July 1968.  

This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  This decision denied service connection for bilateral hearing loss.  

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, but it is duplicative of the documents in the paper claims file.


FINDING OF FACT

The Veteran's bilateral hearing loss disability is not related to active service. 


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in service, and sensorineural hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. 
§§ 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).


Duty to Notify

Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).

This matter was filed as a fully developed claim (FDC) pursuant to Secretary of Veterans Affairs Eric K. Shinseki's program to expedite VA claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for VA to further develop the claim and thereby allowing VA to adjudicate the claim on an expedited basis.  When filing a fully developed claim, a Veteran agrees to submit all evidence relevant and pertinent to his claim, other than service treatment records (STRs) and treatment records from VA medical centers, which will be obtained by the VA. Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining additional records and providing a VA medical examination to the Veteran.  New evidence submitted after a rating decision is issued but within the one-year period following submission of a claim can be considered, although such consideration precludes the Veteran's continued participation in the FDC process.  See VA Form 21-526EZ. 

The notice that accompanies the FDC form informs the Veteran of what evidence is required to substantiate a claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence.  The notice also provides information on how VA assigns disability ratings in the event that service connection is established.  See VA Form 21-526EZ.  Thus, the notice that is part of the FDC form submitted by the Veteran satisfies the VCAA duty to notify.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  Furthermore, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013).  The Veteran's service treatment records are in the claims folder, and the Veteran was provided with a VA examination.  This examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Thus, the duties to notify and assist have been met.

Analysis

The Veteran essentially contends that he has a hearing loss disability as a result of his military service, and that its onset is related to in-service acoustic trauma.

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).

In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 166 (Fed. Cir. 2004).  

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).  

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For the purposes of applying the laws 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.  See 38 C.F.R. § 3.385 (2013). 

Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  See 38 U.S.C.A. 
§§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013); see also VA Under Secretary for Health letter dated October 4, 1995 (it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability).  Here, however, there is no evidence of hearing loss manifested to a compensable degree within that period.

The record shows that the Veteran currently has bilateral hearing loss for VA compensation purposes.  The audiometric findings in the August 2011 VA do establish the existence of a current hearing loss disability as defined by 38 C.F.R. § 3.385.  Shedden element one, medical evidence of a current disability, is therefore met for bilateral hearing loss disability. 

With respect to Shedden element two, medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, the Board will separately discuss disease and injury. 

With respect to disease, the service treatment records (STRs) do not indicate any treatment in-service for hearing loss, and the Veteran's separation audiogram was within normal limits.  Additionally, there is no evidence of hearing loss during service or within the one year presumptive period after service.  See 38 C.F.R. §§ 3.307, 3.309(a) (2013).  Therefore, Shedden element two is not met with respect to disease.
  
As to in-service injury, the Veteran served as a combat engineer in service.  On his VA form 9, "Appeal to Board of Veterans' Appeals," he stated that he "was exposed to loud noise daily while performing construction and demolition tasks under combat conditions" and also "through incoming and outgoing artillery and heavy equipment operations."  

The Board notes that the Veteran is competent to give evidence about what he experienced, and acoustic trauma is subject to lay observation.  See e.g., Layno v. Brown, 6 Vet. App. 465  (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board finds that the Veteran was exposed to hazardous noise during service.  Therefore, Shedden element two is satisfied.  

With respect to crucial Shedden element three, nexus, the question presented, i.e., the relationship, if any, between the Veteran's current bilateral hearing loss and his military service, is essentially medical in nature.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

The Veteran was provided with a VA examination in August 2011.  The VA examiner reviewed the claims file.  He opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in service.  He found that the entrance and separation audiograms were both normal, and noted that "testing at frequencies above 4000Hz was not done."  Although the RO noted in the August 2011 rating decision that the Veteran's tinnitus (for which the Veteran is service connected) was at least as likely related to service, the Board can find no such explicit statement in the report.  However, the examiner did appear to find the tinnitus related to service.  In this regard, the examiner explained that "[t]innitus can result from hearing loss in the 6000-8000Hz range.  The military audiograms did not test that range and the range is not compensable, but the presence of tinnitus in 1970 as stated could have been a result of a non tested 6000-8000Hz loss."  The examiner also stated that "[t]innitus due to acoustic trauma [sic] is common and the [V]eteran could have had a loss associated with the tinnitus, which was not detected on [the] separation audiogram."  In essence, the examiner found the current hearing loss disability for VA purposes unrelated to service because of the results at 4000Hz and below at the separation audiogram, but the examiner did find that the tinnitus could be related to a hearing loss at Hz 6000 and above that went undetected.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40  (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

The Board affords considerable weight to the VA examination report.  A thorough rationale as to the etiology of hearing loss was provided.  The conclusions of the examiner regarding the relationship between the Veteran's current bilateral hearing loss and his military service are consistent with the record, as the separation examination indicated that the Veteran had normal hearing at discharge.  The Board acknowledges that the report could be read to be inconsistent to the extent that the VA examiner provided a negative nexus opinion on the bilateral hearing loss, while essentially providing a favorable nexus opinion on the tinnitus.  As noted, however, the VA examiner provided a rationale to reconcile these opinions, explaining that the Veteran's report of in-service tinnitus could be consistent with some loss of hearing in the higher frequencies of 6000Hz and above, which were not tested.  The examiner further explained that the current hearing loss for VA purposes, which is measured by the results of pure tone thresholds at 4000Hz and below, was unlikely to be related to service given the separation audiogram findings in those same ranges.

In this case, there is no dispute that the Veteran is competent to report events that occurred in service, and to describe symptoms of difficulty hearing because this requires only personal knowledge as it comes to him through his senses.  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[s]ometimes 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.").  In such cases, the Board is within its province to weigh that evidence and to make a credibility determination, because this requires only personal knowledge as it comes to him through his senses.  However, the Veteran did not assert that his onset of hearing loss was in service, but only that he experienced noise exposure.  Thus, there is no credible evidence of continuity of symptomatology in service.  Consequently, the Board finds that the question regarding the potential relationship between the Veteran's current hearing loss and his military service, to include noise exposure, to be complex in nature and that the VA examiner's opinion is the most probative and persuasive evidence of record.  Therefore, Shedden element three, nexus, has not been satisfied, and the claim fails on this basis.

The Board also acknowledges that the Veteran has contended that his bilateral hearing loss is secondary to his service connected tinnitus.  However, the Board finds that the relationship between these two conditions is complex in nature and medical evidence is required.  Here, the VA examination specifically notes that tinnitus is a symptom known to be associated with hearing loss, rather than hearing loss being caused by tinnitus.  

In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against finding that the Veteran's hearing loss had its onset during or is otherwise related to his military service.  Thus, the benefit sought on appeal is denied.



ORDER

Service connection for bilateral hearing loss disability is denied. 




____________________________________________
MICHAEL LANE

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs