Citation Nr: 1335510	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  13-15 811	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION

The Veteran served on active duty from October 1969 to December 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision by a Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

Bilateral hearing loss disability was not shown in service or for several years thereafter, and the most probative evidence indicates that the Veteran's current bilateral hearing loss is not related to service.


CONCLUSION OF LAW

The requirements for establishing service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

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, and 5126 (West 2002)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2013). 

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2013).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). 

In this case, in an October 2011 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA.  The October 2011 letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. 

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant.  Specifically, the information and evidence that have been associated with the physical and electronic claims file includes the appellant's service treatment records, post-service private treatment records, Social Security Administration records, and a June 2012 VA examination report.  Findings from the June 2012 VA examination report are adequate for the purposes of deciding the claim on appeal.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication.  VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law.  Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Criteria & Analysis

The Veteran contends that service connection is warranted for bilateral hearing loss.  The VA has conceded that the Veteran served abroad an aircraft carrier in service which would have resulted in noise exposure during service.  

In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303 (2013). 

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).  

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946, and develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 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").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).  When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Hearing status shall not be considered a disability when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 hertz (Hz) are all less than 40 decibels; thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores used in the Maryland CNC tests are 94 percent or better.  38 C.F.R. § 3.385. 

A service Report of Medical Examination dated in April 1969 for enlistment purposes reflects testing showed pure tone thresholds to be as follows:


HERTZ

500
1000
2000
3000
4000
LEFT
5
0
-5
N/A
0
RIGHT
0
-5
-10
N/A
-5

A service Report of Medical Examination dated in November 1972 for separation purposes reflects testing showed pure tone thresholds to be as follows:


HERTZ

500
1000
2000
3000
4000
LEFT
0
0
0
0
5
RIGHT
0
0
0
0
0

The November 1972 Report of Medical Examination reflects that the Veteran's ears were clinically evaluated as normal, and the section of the report for notes does not reflect that the Veteran complained of any hearing loss. 

Post service records show that the Veteran was employed by Bath Iron Works for many years.  This company evidently provided the Veteran periodic hearing evaluations.  These evaluations have been associated with the claims file, and date from between 1973 and 2006.  They specifically include evaluations from 1973, 1977, and 1985.  Another private hearing evaluation report dates from 1992.  These records first document right ear hearing disability in 1992, and left ear hearing disability in 2006.  

The Veteran underwent a VA audiological examination in June 2012.  Testing showed pure tone thresholds to be as follows:


HERTZ

500
1000
2000
3000
4000
LEFT
20
30
30
40
40
RIGHT
80
100
100
105+
105+

A speech recognition score using Maryland CNC testing was 94 percent in the left ear and 38 percent in the right ear.  The examiner diagnosed sensorineural hearing loss in both ears.  The examiner noted that the Veteran reported military noise exposure to include the firing range, and working one deck below where planes landed on an aircraft carrier.  The Veteran's occupational noise exposure prior to service was at grocery stores and working for a dairy for a while.  The Veteran's occupational noise exposure following service was 33 years at Bath Iron Works, working as a material clerk for about 16 years, and as a supervisor for the rest of the time, with hearing reportedly protection worn.  The Veteran's recreational noise exposure was gun hunting, target shooting to sight in rifle, and power tools, with hearing protection worn during recreational noise exposure.  The examiner noted that military, occupational, and recreational activities all present a risk for hearing loss related to noise exposure.  The examiner stated that, given the Veteran's age, presbycusis is also a factor to consider as possibly contributing to the Veteran's hearing loss.  The examiner noted that hearing screens in service, in September 1973, and in March 1985, all showed hearing levels to be within normal limits bilaterally.  Because hearing loss related to noise exposure is not known to be progressive after the fact, the examiner reasoned that the Veteran's current bilateral hearing loss is not likely as not caused by military noise exposure.  

The evidence establishes that the Veteran has bilateral hearing loss that meets the threshold for service connection set forth under 38 C.F.R. § 3.385; thus, the questions for the Board are whether the Veteran's current bilateral hearing loss is etiologically related to his service, or whether his bilateral hearing loss was manifested to a compensable degree within one year from his separation from service.  After a careful and thorough review of the evidence, the Board finds that the preponderance of the evidence is against the claim. 

Here, the Veteran's service Report of Medical Examination for separation purposes reflects that the Veteran did not have bilateral hearing loss that meets the threshold for service connection set forth under 38 C.F.R. § 3.385, and the earliest medical evidence showing the presence of right or left ear hearing loss that meets the threshold for service connection set forth under 38 C.F.R. § 3.385 was not until many years after service.  In short, the evidence does not show hearing loss disability during service or to a compensable degree within a year of service.  

These normal findings on audiologic evaluations through at least 1985, contradicts the Veteran's assertions that he has had hearing loss disability since service.  Therefore, the statements that he has had symptoms since service are not credible and carry no probative weight.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006).  

Additionally, the Board notes that while the Veteran is competent to report a loss of hearing acuity in service, he is not competent to ascertain the degree thereof, because audiometric levels can only be objectively confirmed via testing, such as was performed at the Veteran's separation from service.  Woehlaert v. Nicholson, 21 Vet. App. 456, 462(2007).  As to a causal relationship between service and his current hearing loss, the Veteran is not qualified to offer an opinion because the question of etiology of his hearing loss is not lay-observable and requires medical expertise.  

Thus, given the evidence as a whole, the Board finds that the Veteran's assertions that his current hearing loss is attributable to service are not competent.  The Board further finds that the Veteran's assertion that he has experienced hearing loss continuously since service is not credible.  Finally, service connection is not warranted on the basis of chronicity because there is no diagnosis of chronic hearing loss during service.  38 C.F.R. § 3.303(b).

As noted above, the June 2012 VA examiner opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service.  The June 2012 VA examination report contains a well-reasoned opinion finding that bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service.  The examiner thoroughly reviewed the claims file, administered audiometric testing, and performed a clinical evaluation.  There are no medical opinions of record to contradict the conclusions of the VA examiner. Thus, the negative opinion is afforded great probative value.  

In view of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss, and the claim must be denied. 

The Board has considered the applicability of the benefit of the doubt doctrine in deciding this appeal.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

ORDER

Service connection for bilateral hearing loss is denied. 


____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs