Citation Nr: 1335713 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-24 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for bilateral hearing loss. In January 2010, the Veteran testified before a Decision Review Officer (DRO) at the RO in Huntington, West Virginia. A transcript of the hearing is associated with the claims file. FINDING OF FACT A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year. CONCLUSION OF LAW Bilateral hearing loss was not incurred or aggravated in service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with a notification letter in November 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria for assigning disability ratings and assigning effective dates. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The duty to assist has also been met here. The Veteran's service treatment records (STRs), private medical records, and VA treatment records have been obtained. The Veteran was afforded a VA examination in June 2008. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiner, the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With respect to the January 2010 RO hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the RO official who conducted the hearing explained the basis for the examiner's opinion and the element that was lacking to substantiate the Veteran's claim. Further, the RO suggested that the submission of a favorable medical opinion could assist the Veteran in substantiating his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been satisfied. Lastly, there is no indication that there is any relevant evidence outstanding in these claims. Therefore, the Board will proceed with consideration of the Veteran's appeal. II. Law and Regulations Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection for sensorineural hearing loss (an organic disease of the nervous system) may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Id. Also, the Court of Appeals for the Federal Circuit (Federal Circuit) held that, unlike §3.303(a) which is not limited to any specific condition, subsection (b) is restricted to chronic diseases." If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned, 'i.e.,' when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. Certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2012). The Court in Hensley v. Brown, 5 Vet. App. 155 (1993) indicated 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 if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Competent medical evidence is evidence provided to a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises, and/or 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). However, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). VA may not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but the absence of contemporaneous medical evidence may be weighed against the lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In determining credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 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. III. Facts The Veteran contends that he has bilateral hearing loss directly resulting from his exposure to loud noises while working in the boiler and engine rooms of an aircraft carrier during service. In his June 2009 notice of disagreement, the Veteran states that he began to notice problems with hearing loss sometime in 1968, but that it wasn't until mid-1970, after he left the navy, that his hearing loss became extreme. Service treatment records include audiometric examinations from October 1968 and February 1970 in which the clinical evaluation of his ears and drums was shown to be normal. No other treatment records indicate complaints of, or treatment for, hearing problems. Post-service, the Veteran had a VA audiology consult in September 2007. The Veteran complained of hearing loss and tinnitus in the left ear for the past several years. The audiometric exam revealed that the Veteran's auditory threshold at 500, 1000, 2000, 3000 and 4000 HZ, was 0, 5, 15, 30, and 30 for the right ear, and 30, 35, 45, 55, and 55 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. The examiner noted mild hearing loss above 2000 Hz in the right ear and mild sloping to severe hearing loss across the frequency test range in the left ear. The examiner prescribed a hearing aid for the Veteran's left ear. The Veteran was provided with a VA audiometric examination in June 2008, at which time the audiologist interviewed him regarding his military background as well as his medical history. The Veteran described his noise exposure in the boiler room and jet planes on the flight deck. He also reported that he had no post-service occupational noise exposure. The audiometric exam revealed that the Veteran's auditory threshold at 500, 1000, 2000, 3000 and 4000 HZ, was 10, 10, 20, 30, and 30 for the right ear, and 65, 65, 65, 60, and 60 for the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 60 percent in the left ear. The VA examiner diagnosed the Veteran with mild sensorineural hearing loss in the right ear, and moderately-severe sensorineural hearing loss in the left ear. It was concluded that the Veteran's hearing loss was not likely related to his military service and on the rationale that the Veteran's audiometric findings at his February 1970 separation examination were clinically normal. At the Veteran's January 2010 hearing, the Veteran testified about his in-service noise exposure and that he was not exposed to noise in his occupations post-service. He did not testify about continuing symptoms since service. IV. Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Board notes that the Veteran does not have a hearing loss disability for VA purposes in the right ear because none of the puretone thresholds as recorded in September 2007 and at the VA examination in June 2008 are greater than 40 decibels and less than three are above 25 decibels. Speech reception threshold was 96 percent correct or better. He did not exhibit a hearing loss for VA compensation purposes in service or at any time since he filed his claim for compensation. See 38 C.F.R. § 3.385 (2013); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). Therefore the remainder of the Board's analysis only applies to the Veteran's currently diagnosed left ear hearing loss. The Veteran did not seek treatment for hearing loss until several decades after his separation from service. The first post-service evidence associated with his claims file that is relevant to this claim is his September 2007 VA audiogram. Therefore, the Board finds that hearing loss did not manifest in service or in the immediate post service years. Because it did not manifest within one year from separation from service, the Board finds that presumptive service connection for sensorineural hearing loss is not warranted in this particular case. See 38 C.F.R. §§ 3.307, 3.309(a). The VA audiology consult and examination confirm that the Veteran currently has left ear hearing loss. Moreover, the Veteran is considered competent to relate a history of noise exposure during service, and the Board concedes that the Veteran experienced acoustic trauma during service. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the June 2008 VA examiner found no link between any current hearing loss and military service based on the record, even after taking into account the Veteran's claims of noise exposure. Noting that the evidence did not show any hearing loss at the Veteran's separation from active duty, the VA examiner determined that the Veteran's current hearing loss was not caused by or a result of his military service. Furthermore, the Board finds persuasive the absence of medical evidence showing a nexus between the Veteran's service and current hearing loss. At his September 2007 audiology consult, the Veteran only reported hearing loss for the past several years. Moreover, the June 2008 VA examiner acknowledged the Veteran's complaints of in-service noise exposure, but nonetheless concluded that it was less likely than not that the Veteran's current hearing loss was in fact due to his reported exposure to acoustic trauma in service or otherwise related to service. In so finding, the examiner looked to the Veteran's normal audiometric results at separation, as well as the remainder of his service treatment records, which were clear for any signs or complaints of, or treatment for hearing problems, in ultimately finding that any current hearing loss was not likely related to service. A layperson without the appropriate medical training and expertise is simply not competent to provide a probative opinion on a medical matter, such as an etiological relationship between current hearing loss and military service. Woehlaert, 21 Vet. App. at 462. The Veteran has reported that he first experienced a loss of hearing acuity during service and has implied during combat service. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304. However, he has also reported that he noticed hearing loss, primarily in his left ear, following service. See Veteran's statement received with his compensation application in October 2007. When seen for hearing problems in September 2007, he complained of hearing loss in his left ear over the past several years. He does not consistently place the onset of hearing loss in service. He does not specifically claim continuing symptomatology of hearing loss since service, and there is an absence of complaints or treatment for nearly forty years after service. The separation examination reflecting normal audiometric findings also weighs against any finding that hearing loss had its onset in service. The Board finds that the length of time between the Veteran's separation from active duty in 1970 and first being diagnosed with left ear hearing loss nearly forty years later in 2007 is evidence which weighs against continuity of symptomatology. See Maxson v. West, 12 Vet.App.453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service.). In addition, the private medical evidence of record reflects that the Veteran has received ongoing medical treatment for various health-related reasons since July 1998. The fact that the Veteran failed to mention his ongoing hearing problems weighs against his credibility. The Board finds it likely that if hearing problems persisted or a hearing disability was present, the Veteran would have mentioned this during these treatment visits. In light of these facts, service connection is not warranted under 38 C.F.R. § 3.303(b). Relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking the current disability to service. The Board is satisfied that the June 2008 VA examiner's opinion is adequate for deciding this appeal. The opinion, based on the entire record, including the Veteran's own history, indicates that the Veteran's left ear hearing loss is less likely than not related to military service. Because the VA examiner's opinion is not controverted by any other medical evidence of record, in light of the foregoing analysis and the underlying facts, the Veteran's service connection claim for hearing loss must be denied. Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection for bilateral hearing loss. See 38 U.S.C.A. §1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 49. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs