Citation Nr: 1335727	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  09-26 416	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to service connection for a bilateral knee disability.

3.  Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel



INTRODUCTION

The Veteran had active service from November 2003 to November 2008, including in combat in support of Operation Iraqi Freedom in Iraq and Operation Enduring Freedom in Afghanistan.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which, in pertinent part, denied service connection for a low back disability, a bilateral knee disability, left ear hearing loss, and tinnitus.

In June 2009, the RO granted service connection for tinnitus, assigning a 10 percent rating effective November 13, 2008.  There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned.  Accordingly the issue of service connection for tinnitus is no longer in appellate status.


FINDINGS OF FACT

1.  Current disabilities of the low back and bilateral knees are not shown.

2.  In-service acoustic trauma is conceded as it is consistent with the facts and circumstances of the Veteran's combat service service in Iraq and in Afghanistan.

3.  A current left ear hearing loss disability under 38 C.F.R. § 3.385 is not shown.


CONCLUSION OF LAW

The criteria for service connection for a left ear hearing loss disability have not been met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 
 
Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The VCAA notice requirements also apply to all five elements of a service connection claim.  The five elements are: (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.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).
 
The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 


The RO provided pre-adjudication VCAA notice by a letter dated in November 2008.  As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (explanation of how VA establishes disability ratings and effective dates).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  VA has complied with the duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's Virtual VA claims file has been reviewed.  The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required.

The Veteran has been provided with a VA examination for his claimed left ear hearing loss.  Given that the pertinent medical history was noted by the examiner and the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the examination is adequate for rating purposes.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  

In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. §§ 1110, 1131. 

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

For the conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).   

Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 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.  38 C.F.R. § 3.385. 

The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level indicates some degree of hearing loss, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

To establish service connection for hearing loss, the Veteran is not obliged to show that the disability was present during active military service.  However, if there is insufficient evidence to establish that the claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992). 

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

The Veteran's DD Form 214 shows that his awards and decorations included the Parachutist Badge, the Army Commendation Medal, the Combat Infantryman Badge (CIB), and the Iraq Campaign Medal Campaign Star.  This form also shows that the Veteran served in a designated imminent danger pay area and served in Afghanistan between April 15, 2005, and February 28, 2006, and in Iraq from June 1, 2007, to July 21, 2008.  The Veteran's military occupational specialty (MOS) was infantryman.

The Veteran also submitted a copy of his citation for the Army Commendation Medal.  This citation indicates that the Veteran was awarded the Army Commendation Medal with "V" Device in June 2005 "for distinguishing himself through valorous conduct and fortitude under fire" and for "extraordinary heroism, uncommon valor, and intrepid actions."

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b); (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). 

In the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact (i.e. admissible); while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

Competency is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).  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 facts or circumstances and conveys matters that can be observed and described by a lay person).  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When the evidence is admissible, the Board must then determine whether the evidence is credible.  Credible evidence is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, it has no probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Analysis

A November 2003 enlistment physical examination showed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
5
0
5
10
15

On audiological evaluation in January 2007, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
0
LEFT
10
5
15
20
20

On audiological evaluation in April 2007, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
5
5
LEFT
10
5
15
20
20

On audiological evaluation on July 23, 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
15
10
LEFT
20
20
25
30
30

On audiological evaluation on August 13, 2008, the Veteran complained of left ear hearing loss and difficulty understanding speech in certain listening situations.  He reported that he was exposed to acoustic trauma in a fire fight while deployed to Iraq in support of Operation Iraqi Freedom.  He also reported problems with both clarity and volume in certain listening situations."  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
20
10
LEFT
15
20
15
20
25

Speech audiometry revealed speech recognition ability of 100 percent in both ears.  The in-service audiologist stated that, although the Veteran's hearing was within normal limits in the right ear and "essentially within normal limits [in the] left ear" there was a mild sensorineural hearing loss at 4000 Hertz in the left ear.  The Veteran's speech recognition scores were excellent.  The assessment included sensorineural hearing loss.

At his separation physical examination on August 14, 2008, the Veteran denied any in-service history of hearing loss.  The Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
15
10
LEFT
20
20
25
30
30

On VA audiology examination in January 2009, the Veteran reported in-service noise exposure history of being exposed to small arms fire and explosives during an 11-month tour in Afghanistan and a 14-month tour in Iraq.  He also reported that he wore hearing protection "almost constantly" during service.  On clinical evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
5
5
LEFT
15
15
15
20
20

Speech audiometry revealed speech recognition ability of 100 percent in both ears.  Otoscopy showed clear external auditory canals.  The diagnosiss was hearing within normal limits with 100 percent word recognition bilaterally.

The Veteran contends that he incurred left ear hearing loss as a result of military service.  He specifically contends that he was exposed to significant in-service acoustic trauma while in combat in Iraq and Afghanistan which caused or contributed to his current left ear hearing loss.

The Veteran's combat service history is satisfactory evidence that he experienced noise exposure during service.  38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d).  While noise exposure is what happened in service, an initial question is whether the Veteran has a current hearing loss disability.  A current disability is demonstrated if the condition is shown at any time since submission of the current claim, even though it may have resolved.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  

The record fails to show a current left ear hearing loss disability under 38 C.F.R. § 3.385.  

The Veteran is competent to describe impaired hearing, which is within the realm of his personal experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  He is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

A hearing loss disability is not a simple medical condition because the diagnosis is based on results of audiology testing that meet the standards of hearing loss disability under 38 C.F.R. § 3.385.  A hearing loss disability under 38 C.F.R. § 3.385 is also not a condition under case law that has been found to be capable of lay observation.  For these reasons, the Veteran, as a layperson, is not competent to state that his level of impaired hearing reaches the level of the legal standard of a hearing loss disability for the purpose of VA disability compensation under 38 C.F.R. § 3.385.  And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify a hearing loss disability by audiogram under 38 C.F.R. § 3.385.   

As the Veteran's lay contention is not competent evidence to establish a diagnosis of a current left ear hearing loss disability under 38 C.F.R. § 3.385, the Board must consider the medical evidence of record. 

The January 2009VA audiology examination results do not reflect a current left ear hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385.  Auditory thresholds were not 26 decibels or more in at least three of the frequencies, and the speech recognition scores were not less than 94 percent in either ear.  The VA examiner also indicated that the Veteran's hearing in the left ear is clinically normal.  The VA examiner's finding is persuasive medical evidence against the claim on the question of whether there exists a current left ear hearing loss disability under 38 C.F.R. § 3.385.  The VA examiner is an audiologist, who is qualified through education, training, or experience to offer such findings.   

The Veteran has not otherwise identified or provided existing audiometric testing results that meet the requirements of 38 C.F.R. § 3.385 and he is not competent to opine that he has a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385.   

Congress has specifically limited entitlement to service- connection for disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110.  While there may be evidence of some degree of hearing loss in service, and evidence of in-service noise trauma, in the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).   

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted for a left ear hearing loss disability.  38 U.S.C.A. § 5107(b).  


ORDER

Service connection for left ear hearing loss is denied.




____________________________________________
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs