Citation Nr: 1335534 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-09 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In July 2012, the Board remanded the case to the RO for additional development, and it is now returned for further review. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The Veteran's current bilateral hearing loss is not related to service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Pelegrini v. Principi, 17 Vet. App. 412 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In March 2010, a VCAA letter was issued to the Veteran with regard to his claim of service connection. The letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records, post-service private and VA treatment records, and the Veterans statements and submitted articles. There is no indication of relevant, outstanding records that would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c) (1)-(3). In July 2010 and August 2012, the Veteran was afforded VA audiological examinations, and etiological opinions were proffered. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the hearing loss issue in appellate status. Criteria Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 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 also Hensley v. Brown, 5 Vet. App. 155 (1993). The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385 . . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Background The Veteran's service treatment records are unremarkable for hearing loss; however, the Veteran worked as a security guard of B-47 Bombers. The Board notes the Veteran's personnel records reflect his military occupational specialty (MOS) was Air Policeman. The Veteran's Air Force Specialty Code in security forces appears on the Duty MOS Noise Exposure Listing under "Moderate" exposure. The Veteran's lay statements describe his exposure to hazardous noise. Therefore, the Veteran's exposure to hazardous noise during military service is conceded. In a July 1959 enlistment examination, a normal whisper test revealed 15/15 hearing bilaterally. In the September 1962 separation examination, a whisper test revealed 15/15 hearing bilaterally. An audiogram was conducted, and pure tone thresholds, in decibels, were as follows HERTZ 500 1000 2000 3000 4000 RIGHT -10 -5 -5 -10 20 LEFT -5 -5 -5 -10 20 The Veteran filed an informal claim for hearing loss in January 2010 and a formal claim in March 2010. In February 2010 the Veteran submitted a statement describing his noise exposure during military service and his civilian work with no noise exposure. In an April 2010 statement he provided a more complete description of his civilian work environment and indicated no ear protection was needed in his positions because there was no noise exposure. Central Hearing Consultants hearing aid evaluation dated in May 2009 and March 2010 noted sensorineural hearing loss, bilaterally for 5 years or more. This was associated with understanding speech, TV, background noises, etc. There was a history of noise exposure, and familial hearing loss. In a July 2010 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 50 60 85 LEFT 20 35 30 45 65 Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 74 percent in the right ear and 96 percent in the left ear. The examiner noted that the Veteran's claims file was reviewed. He reported being an active duty air policeman from 1959-1963. He guarded B47 aircraft and they would rev up the engines and used a generator to start the engines while he guarded them. He used no ear protection. The earliest audiogram in the claims file was August 1989 and revealed normal hearing in the left ear except at 4000 Hz which showed moderate hearing loss; the right ear had mild sloping to severe hearing loss. The examiner noted that the hearing at that time was within the normal range. The examiner opined that the Veteran's hearing loss was not at least as likely as not due to noise exposure during military service. The examiner based his opinion on the facts that the Veteran had no combat experience and worked "in noise . . . on a drill press" in a factory for four years. The case file was reviewed by the examiner who noted that he was not provided the service medical records to review. In September 2010 the examiner again reviewed the claim with the addition of the service medical records. He noted the July 1959 induction examination revealed normal whisper test 15/15 for both ears. A Bekesy audiogram in July 1959 revealed normal hearing at all levels tested. A medical examination at service separation was also normal. The examiner noted that the audiometric testing suggested normal bilateral hearing except at 6 KHz for the right ear at induction. Audiometric testing at discharge suggested normal bilateral hearing at all frequencies tested. Therefore, he concluded, it is not at least as likely as not that the Veteran's service noise exposure contributed to a hearing loss in either ear as hearing was within normal range in both ears at discharge. In the Veteran's Notice of Disagreement (NOD) he provided a detailed description of his working environment at the factory and his employer's safety protocols. He repeatedly asserted the factory environment in which he worked was not noisy, and therefore, did not require the use of ear protection. He stated he reported to the VA examiner that "employees were able to carry on normal conversations in the area because there was no noise." The Veteran also provided a description of his work environment guarding B47 Bombers for two years in the Air Force. At times when aircraft were being moved, the Veteran found he had to "get out of the way and cover (his) ears because of the pain (he) felt from the noise of the jet engines." He emphasized as a guard he was anywhere from 5 to 15 feet from the aircraft for a duration of an hour to several hours where he was "unable to leave and continuously subjected to ear piercing noise from jet engines." The Veteran was not provided with any ear protection during his military service. The Veteran also reported in his NOD that he first noticed his hearing loss in 1970. The Board notes that the first recorded evidence of the Veteran's hearing loss appeared in an August 1989 private treatment record (Slocum Dickson Medical Group). In an August 2012 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 50 65 85 LEFT 20 35 30 65 55 Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 72 percent in the right ear and 90 percent in the left ear. The examiner noted that the Veteran's claims file was reviewed. The examiner noted a bilateral sensorineural bilateral high frequency hearing loss. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or as a result of an event in military service. The examiner noted that the Veteran's hearing remained within the normal range limits from entrance to separation from service. The examiner further noted that: According to VA Guidance, the Institute of Medicine concluded that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. That is the current VHA policy and until there is compelling scientific evidence to the contrary it will remain so. Analysis After carefully considering the Veteran's contentions and reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. As detailed, service treatment records are negative for hearing loss or perceived hearing or ear problems, and the Veteran's hearing was normal on audiometric testing in July 1959 upon enlistment and in September 1962 at separation. Although the lack of in-service findings of complaints or diagnosis of hearing loss does not preclude a finding of service connection, hearing loss was not shown until August 1989, a period of over 26 years after separation from service. The lack of any evidence of continuing hearing loss for many years between the period of active duty and the initial findings or documented complaints of hearing loss weighs against the claim. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Likewise, the July-September 2010 and August 2012 VA audiologists reviewed the claims folder, which included service treatment records. As detailed, the examiners opined that the Veteran's current hearing loss was not due to military noise exposure based on review of the claims folder, to include normal hearing found on audiometric testing at separation from service in September 1962. The Board accepts the examiners' opinions as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains articulated rationales for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination reports and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). There are also no contrary opinions of record. The Board has considered the Veteran's contention that a relationship exists between his current hearing loss, and his noise exposure experienced during service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a) (2) (Competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds the Veteran is competent to attest to noise exposure he experienced during service, and finds his statements of noise exposure generally credible based on his experiences of serving as an air policeman. The fact remains, however, that his hearing was normal on audiometric testing in July 1959 upon enlistment and was also normal in the September 1962 separation examination. The VA examiners were aware of the Veteran's in-service noise exposure per the Veteran's statements and review of the claims folder, but concluded that his hearing loss was not due to service. The Veteran's contentions are outweighed by the medical evidence and opinions of the VA medical examiners, which reflect that his hearing loss was not due to noise exposure in service. To the extent the Veteran is claiming that he noticed difficulty hearing during and since service, he is competent to attest to this; however, his perception of hearing loss is not a reliable gauge as hearing loss, for VA compensation purposes is measured by audiometric findings. See 38 C.F.R. § 3.385. Moreover, the fact that a perceived hearing defect was not identified during the July 1959 enlistment examination or the September 1962 separation examination tends to contradict the Veteran's assertion that he perceived a hearing loss since service, especially because he denied having ear trouble at the separation examination in September 1962. The Board also observes that there are no post-service private or VA treatment records for a bilateral hearing disability or subjective complaints of hearing loss from separation from service in January 1963 until evidence of the Veteran's hearing loss appeared in an August 1989 private treatment record (Slocum Dickson Medical Group), a period of over 26 years after separation from service. As such, because he denied hearing or ear problems at separation from service in September 1962. His current statements contradict his assertion that he had experienced hearing loss as a result of service or since approximately January 1963, weighing against his credibility in this regard. Therefore, service connection for bilateral hearing loss is not warranted and the claim must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; 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 Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs