Citation Nr: 1336072 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-26 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from June 1963 to April 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed both the physical claims file and the Virtual VA electronic claims file. FINDING OF FACT The most probative evidence of record fails to demonstrate that the Veteran's right ear hearing loss is at least as likely as not etiologically related to his military service. CONCLUSION OF LAW Right ear hearing loss was not incurred or aggravated in service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA satisfied its duties to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must assist a claimant when he or she files a complete, or substantially complete, claim for benefits. This assistance involves notifying claimants of evidence that is necessary, or would be of assistance, in substantiating their claims, and providing notice that, if service connection is awarded, a disability rating and an effective date for the award of benefits will be assigned. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). VA should provide this notice prior to the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, VA provided the Veteran notice in April 2010, prior to the initial adjudication of his claim in August 2010. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim and told that he needed to identify the relevant time periods for treatment and the persons, agency, or company in possession of additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. Further, he was told how VA would assign a disability rating and an effective date if the claim were granted. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. VA also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file. A review of the Appeal Certification Worksheet in the claims file reveals that VA obtained all identified VA treatment records, and the Veteran has not identified any treatment records aside from those that are already of record. In addition, his May 2010 VCAA notice response indicates that he has no other evidence to submit. The Board therefore concludes VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty obtain a medical examination and opinion when required. In July 2010, VA provided the Veteran a medical examination and obtained a medical opinion from an audiologist addressing whether the Veteran had a diagnosis of hearing loss for VA purposes, and if so, whether it was linked to his active service. VA also obtained two addendum opinions in August 2010. As VA satisfied its duties to notify and assist the Veteran, the Board finds no further action is needed to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim The Veteran contends he is entitled to service connection for a right ear hearing loss disability as a result of exposure to hazardous noise during his active service. The Board finds the Veteran not entitled to service connection for a right ear hearing loss disability because competent, probative evidence of record fails to establish an etiological link between the Veteran's current right ear hearing loss disability and his active service. A disability is service-connected if it resulted from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or causal relationship, between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Impaired hearing is only a disability for VA purposes if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or (2) auditory thresholds for at least three of those frequencies are 26 dB or greater; or (3) Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. A disability is presumed service-connected if the Veteran had at least 90 days of active service and the disability at issue is a chronic disease that manifested to a degree of 10 percent or more within a presumptive period following the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If evidence of chronicity, or permanency, of the disease in service is not shown, service connection can still be established for conditions listed in 38 C.F.R. § 3.309(a) by showing a continuity of symptomatology following service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). Continuity of symptomatology is shown by demonstrating "(1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Barr, 21 Vet. App. at 307; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (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"). When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law. 38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must focus on the evidence necessary to substantiate a claim and what the evidence fails to show, and, in doing so, explain why any material evidence favorable to the claimant was rejected or given little weight. 38 U.S.C.A. § 7104(d)(1) (2013); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record). If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.A. § 5107(b)(2013); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, the claim will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. The evidence of record demonstrates that the Veteran has a current diagnosis of hearing loss for VA purposes. 38 C.F.R. § 3.385. A review of the record reveals that the Veteran was diagnosed with bilateral high frequency sensorineural hearing loss in a March 2010 VA treatment record. The treatment record does not provide a Maryland CNC speech recognition score. Right ear puretone thresholds from the VA treatment record were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 10 15 20 25 50 In July 2010, a VA examiner diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in the right ear. His right ear Maryland CNC speech recognition score was 94 percent. Right ear puretone thresholds from the examination were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 10 20 20 30 55 The Board finds that the Veteran has a current right ear hearing loss disability under 38 C.F.R. § 3.385 because both the March 2010 and July 2010 audiograms show one puretone threshold above 40 dB at the 4,000 Hz frequency. The evidence of record also shows that the Veteran suffered an in-service injury. The Veteran's in-service audiograms do not reflect hearing loss within VA's definition under 38 C.F.R. § 3.385. Both the Veteran's June 1963 enlistment and February 1965 reenlistment examinations do not contain audiograms or Maryland CNC speech recognition scores. The June 1963 enlistment examination does, however provide whisper test score of 15 out of 15 for the right ear. In July 1966, VA switched from reporting audiometric results using American Standards Association (ASA) units to using International Organization for Standardization (ISO) units; the military followed suit in November 1967. Since the current definition for a hearing loss disability-found at 38 C.F.R. § 3.385-is based on ISO units, military audiograms from before November 1967 must be converted from ASA to ISO units. The ASA units are converted to ISO by adding 15 dB to the finding at 500 Hz, 10 dB to the findings at 1,000 Hz, 2,000 Hz, and 3,000 Hz, and 5 dB to the finding at 4,000 Hz. An April 1967 reenlistment examination contains a whisper test score of 15 out of 15 for the right ear, but does not provide a Maryland CNC score. The Veteran's puretone thresholds, converted from ASA to ISO units, were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 0 (15) 0 (10) 0 (10) Not Tested 0 (5) [The figures in parentheses represent conversions of audiometry reported in ASA values to ISO (ANSI) units, and are provided for data comparison purposes.] A June 1968 flight physical examination does not contain a Maryland CNC score, but does provide a whisper test score of 15 out of 15 for the right ear. Right ear puretone thresholds were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 20 20 20 Not Tested 25 A July 1969 flight physical examination also does not contain a Maryland CNC score. Right ear puretone thresholds were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 5 5 5 Not Tested 5 Finally, the Veteran's January 1970 separation examination does not contain a Maryland CNC score. Right ear puretone thresholds were as follows: HERTZ 500 1,000 2,000 3,000 4,000 RIGHT 5 0 5 Not Tested 5 There do not appear to be any other indications in the STRs that the Veteran ever complained of or sought treatment for hearing loss. None of the medical history reports indicate the Veteran ever had any ear trouble or wore hearing aids during service, and the Veteran's ears and drums were clinically normal upon each examination. While the April 1967 reenlistment examination, July 1969 flight physical examination, and January 1970 separation examination audiograms reveal no evidence of hearing loss, the 1968 flight physical examination audiogram reveals some hearing loss at 4,000 Hz. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (finding that normal hearing is from 0 to 20 dB and higher levels indicate some degree of hearing loss). The Board notes, however, that the 1968 flight physical examination audiogram appears to be an anomaly, as the other three audiograms are consistent with one another, and finds that it does not establish that the Veteran had a right ear hearing loss disability for VA purposes during service. Regardless, the United States Court of Appeals for Veterans Claims (Court) has held that when separation examination audiometric tests do not meet the requirements of 38 C.F.R. § 3.385, the Veteran may still establish service connection by submitting evidence that any current hearing loss disability is causally related to his or her service. Hensley, 5 Vet. App. at 160. The Board must therefore consider other evidence regarding the Veteran's exposure to hazardous noise during active service. In this case, that evidence consists of the Veteran's lay testimony. In his April 2010 informal claim, the Veteran asserted that he served as a tank gunner on M48 and M60 tanks. March 2010 VA treatment records indicate that the Veteran reported spending one year of his active duty service in armor and the rest of his service as an aircraft mechanic, being exposed to armor-piercing tank guns, and not wearing hearing protection. The July 2010 VA examination indicates the Veteran reported being exposed specifically to weaponry and aircraft engine noise. The Board finds the Veteran competent to testify regarding his exposure to hazardous noise because it does not require specialized education, training, or experience, he has personal knowledge of the facts, and exposure to noise is something a layperson could observe and describe. 38 C.F.R. § 3.159(b). The Veteran's testimony is also credible because it is corroborated by each of his DD 214 forms, which list his military occupational specialty (MOS) as armor crewman from June 1963 to June 1964, airplane repairman from June 1964 to April 1967, and airplane tech inspector and aircraft mechanic and repairman from April 1967 to April 1970. His DD 214 form for June 1964 through April 1967 also shows that he was an SS tank gunner, and his DD 214 form for April 1967 through April 1970 shows he received a Marksman Badge using an M-14 rifle. The Board therefore concedes that the Veteran was exposed to hazardous noise during active service. Regarding a causal nexus, however, the probative evidence of record evidence fails to show that the Veteran's current right ear hearing loss disability is etiologically related to his active service. During his July 2010 VA examination, the Veteran reported being knocked unconscious during service, but did not report any otologic conditions. He denied pre-military noise exposure and reported that after separation from service he had worked for three years as a steelworker, and then for 35 years as an airplane mechanic. He also reported recreational noise exposure from woodworking for the previous seven years. The July 2010 VA examiner diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in his right ear and found that immittance was consistent with normal middle ear function and speech recognition was excellent. The VA examiner opined that the Veteran's current right ear hearing loss disability was less likely as not caused by or a result of acoustic trauma during military service. The rationale was that his entrance and separation examinations revealed normal hearing in the right ear that did not meet the criteria for a hearing disability, and that both his history of post-military noise exposure as a steelworker and aircraft mechanic and his recreational woodworking "may [have] be[en] contributing to" his hearing loss. In an August 2010 addendum opinion, the same VA examiner noted that the Veteran's whisper test on entrance into service was normal, that the 1968 flight physical examination indicated normal hearing, and that the 1969 flight physical examination indicated improved hearing in the right ear. In a second August 2010 addendum opinion, the same VA examiner noted that she had reviewed Hensley, 5 Vet. App. at 159, and stated that the Veteran's right ear hearing loss was not due to acoustic trauma because the separation evaluation revealed normal hearing in the right ear. The Board finds the VA examiner's opinion adequate, as the VA examiner reviewed the entire record, considered prior pertinent medical and lay evidence, and provided a rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007); Barr, 21 Vet. App. 303 at 311-12 (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). While the VA examiner stated in the July 2010 opinion that the Veteran's 1963 enlistment examination showed normal hearing when it did not contain an audiogram, the VA examiner later clarified in the first August 2010 addendum opinion that the normal evaluation upon entrance was a whisper test. The Board acknowledges that in the first August 2010 addendum opinion the VA examiner stated that the Veteran's 1968 flight physical examination indicated normal hearing when the audiogram showed one puretone threshold of 25 dB at 4,000 Hz, but notes that the VA examiner apparently made that statement prior to reviewing Hensley, which defined normal hearing for VA purposes as between 0 and 20 dB for all frequencies, and that 38 C.F.R. § 3.385 uses a puretone threshold of 26 or above to determine whether a hearing disability exists for VA purposes. In addition, the Board recognizes that the VA examiner did not specifically cite or explain the 20-25 dB shift from the 1967 reenlistment examination audiogram to the 1968 flight physical audiogram, but notes that the VA examiner did address the 15-20 dB shift from the 1968 to the 1969 flight physical examination audiograms and found it showed improvement. Further, the Board reiterates that the 1968 flight physical examination audiogram appears to be an anomaly, as the other three audiograms are consistent with one another. The Board acknowledges that it was argued on the Veteran's behalf in his August 2010 notice of disagreement (NOD) and October 2011 substantive appeal that the VA examiner's opinion is flawed because it was based solely on a finding that the Veteran's January 1970 separation examination did not show hearing loss. The Board recognizes that the VA examiner stated in the second August 2010 addendum opinion that the Veteran's right ear hearing loss was not due to acoustic trauma because the January 1970 separation examination audiogram revealed normal hearing, but finds that the VA examiner did not base her opinion solely on the lack of a right ear hearing disability upon separation from service because in the July 2010 opinion the VA examiner also included in the rationale that the Veteran's post-military noise exposure from his occupations and recreational activities may have been contributing to his hearing loss. Further, the examiner clearly also considered other factors in rendering her opinion such as whether there was a significant shift in the decibel levels in service. She found no such appreciable shift in the right ear as opposed to the left ear which resulted in a favorable opinion for the left ear and the subsequent award of service connection. The Board also acknowledges that it was argued on the Veteran's behalf in the August 2010 NOD that the in-service military audiometric tests were inadequate because they did not measure a puretone threshold at 6,000 Hz and, therefore, there is no medical basis upon which a VA examiner could conclude that the Veteran did not demonstrate noise-induced hearing loss in service. The Board finds both the Veteran and his representative not competent to determine whether all military audiometric tests are inadequate, as that is a complex medical issue that requires specialized education, training, or experience. 38 C.F.R. § 3.159(b). Further, the Board is bound by VA's regulations. 38 U.S.C.A. § 7104(c). The Board notes that the March 2010 VA treatment record indicated that the Veteran reported wearing hearing protection when working after separation from service as an aircraft mechanic, and that he denied any ear pathologies, but finds that it does not provide an opinion regarding whether it was as likely as not that the Veteran's hearing loss is etiologically related to his active service. To the extent that the Veteran's claim could be interpreted as providing lay evidence of a nexus, the Board finds the Veteran not competent to provide an opinion regarding the etiology of his right ear hearing loss disability, as the issue is medically complex and requires specialized education, training, or experience. 38 C.F.R. § 3.159(b); see Jandreau, 492 F.3d at 377 n.4; Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Finally, the Board finds that the Veteran's current right ear hearing loss disability is not service connected on a presumptive basis. While sensorineural hearing loss qualifies as a chronic organic disease of the nervous system under 38 C.F.R. § 3.309(a), its presumptive period is one year after separation from service. 38 C.F.R. §§ 3.307(a)(3). The record does not establish that the Veteran's right ear hearing loss disability manifested to a compensable degree within one year after his separation from service in January 1970. Further, the record does not establish that his hearing loss was chronic in service, or that the Veteran had continued symptomatology following service. Even if the Board interprets the Veteran's claim as including the assertion that his hearing loss began in service, or the 1968 flight physical examination audiogram puretone threshold of 25 dB at 4,000 Hz, as showing that it was "noted" in service, the Board notes that the Veteran has not specifically alleged the actual onset of right hearing loss in service, and there are no statements of record that establish a consistent report of symptomatology to establish continuity since service. To the extent that it could be inferred that the Veteran is essentially stating that he had right ear hearing loss in service such statement is inconsistent with his denial of history of ear trouble at separation examination in 1970 and the normal findings with regard to the right ear on examination at separation. Thus, there is no credible evidence of the in-service onset of right ear hearing symptomatology. Further, the record contains no other evidence that the Veteran ever complained of or sought treatment for a right ear hearing loss disability or symptoms thereof until he visited a VA medical center in March 2010. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a prolonged period without medical complaint can be considered with other factors as evidence of whether injury or disease was incurred in service resulting in any chronic or persistent disability). Consequently, the Veteran's right ear hearing loss disability is not service connected on a presumptive basis. In sum, the competent, credible, and probative evidence of record does not establish that the Veteran has a right ear hearing loss disability that is etiologically related to his active service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a right ear hearing loss disability and entitlement to service connection is not warranted. (Continued on the next page) ORDER Service connection for a right ear hearing loss disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs