Citation Nr: 1336487	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  11-25 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for a left ear hearing loss disability. 


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Rutkin, Joshua M.







INTRODUCTION

The Veteran served on active duty from February 1986 to February 1989, and from January 1991 to March 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.  The Indianapolis RO certified this case to the Board. 

The Veteran was scheduled to testify at a hearing before the Board on March 8, 2012.  A February 2012 letter notified the Veteran of the date, time, and location of the hearing.  However, he did not appear for this hearing and has not provided a reason for his failure to appear or requested that the hearing be rescheduled.  Accordingly, the Board will proceed with appellate review.  See 38 C.F.R. § 20.704(d) (2013) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn).


FINDING OF FACT

The Veteran's left ear hearing loss pre-existed his periods of active military service, and was not aggravated by any disease, injury, or event during active service. 


CONCLUSION OF LAW

The criteria for service connection for a left ear hearing loss disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.3.07, 3.309, 3.385 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See 38 C.F.R. §§ 3.159, 3.326, 3.327 (2013).  

With regard to the duty to notify, when VA receives an application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. 

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when notice is followed by readjudication of the claim (such as through issuing a Statement of the Case or Supplemental Statement of the Case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

Here, prior to the initial rating decision in this matter, an April 2009 letter notified the Veteran of the elements of service connection, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim.  Therefore, the duty to notify is satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio, 16 Vet. App. at 187. 

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, and performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records and VA medical records are in the claims file.  He has not identified any other records or evidence he wished to submit or have VA obtain.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Here, an audiological examination was performed in June 2009.  The examination report is adequate for deciding this claim.  Specifically, the examiner reviewed the claims file and medical history, examined the Veteran, and provided an explanation for the opinion stated which enables the Board to make a fully informed decision.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion"); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  Accordingly, VA's duty to provide an examination and obtain an opinion is satisfied.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 

The Board notes that the Veteran's representative stated that the VA examination was inadequate because the VA examiner should have opined as to whether the evidence was clear that the pre-existing hearing loss was clearly and unmistakably not aggravated by service.  However, as discussed in more detail below, the Board has found that because there was no permanent increase of left ear hearing loss during service, but rather ultimately the same or an improvement of hearing, the presumption of aggravation does not apply in this case.  

In summary, VA's duty to notify and assist under the VCAA has been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  There is no defect in the notice or assistance provided that affected the outcome of this claim or compromised the "essential fairness of the adjudication."  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, if there were any error in the notice or assistance provided, it was harmless and no prejudice exists.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that the claimant has the initial burden of showing harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review.  


II. Analysis

The Veteran claims entitlement to service connection for a left ear hearing loss disability, which he argues was caused or aggravated by hazardous noise exposure during active service.  For the following reasons, the Board finds that service connection is not warranted.

The Board has thoroughly reviewed all the evidence of record, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  Under this standard, a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 



Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Entitlement to service connection is established with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a).  

For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)).  Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden.  C.F.R. § 3.303(b); Walker, 708 F.3d at 1338 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology").  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period."  Walker, 708 F.3d at 1339.

Because the Veteran has been diagnosed with sensorineural hearing loss, as reflected in the June 2009 VA examination report, and organic diseases of the nervous system, including sensorineural hearing loss, are defined as chronic diseases in section 3.309(a), the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service under subsection 3.303(b).  See Walker, 708 F.3d at 1338-1339. 

In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss as a chronic disease may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  This presumption may only be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

The evidence shows that the Veteran had left ear hearing loss severe enough to be considered disabling prior to entering his periods of active service, and that it was not aggravated by any disease, injury, or event during active service.  In this regard, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See 38 C.F.R. § U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  

With regard to the Veteran's first period of service, the August 1985 enlistment examination report includes an audiogram showing puretone thresholds in the left ear of 25 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 45 decibels at 3000 Hertz, and 60 decibels at 4000 Hertz.  Impaired hearing is considered a disability under VA law, in relevant part, when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater.  38 C.F.R. § 3.385.  Thus, the August 1985 enlistment examination shows that the Veteran had disabling left ear hearing loss on entry into active duty.  See id.  Moreover, the Veteran's physical profile, or "PULHES" profile, in this report also reflects a numerical designation of "2" under "H," which means that the Veteran was found to have a hearing defect requiring some activity limitations.  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (citing to then Army Regulation 40-501, Para. 9-3(b)(1)-(6), Change 35 (Feb. 9, 1987), now Para. 7-3(d)(2) (August 4, 2011)).  Although the Veteran's hearing acuity was marked as normal in the "Clinical Evaluation" section on the front page of the examination report, the actual clinical findings on the second page make it clear that the Veteran's left ear hearing was noted as impaired. 

Because the Veteran's left ear hearing loss was noted at entry, he is not considered sound at entry with regard to his left ear hearing acuity, and service connection may only be granted for hearing loss based on aggravation due to an in-service disease, injury, or event, or a permanent increase during service.  See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b).  A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; § 3.306(a); Townsend v. Derwinski, 1 Vet. App. 408 (1991).  Thus, there is a presumption of aggravation when disability from a pre-existing injury or disease increases during service.  See id.  When the presumption of aggravation applies, it may only be rebutted by clear and unmistakable (obvious or manifest) evidence, such as medical evidence showing that any increase in disability was due to the natural progress of the preexisting condition.  38 C.F.R. § 3.306(b).  

A flare-up of symptoms, in the absence of an increase in the underlying disability, does not constitute aggravation of the disability.  Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation).  Further, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).

The preponderance of the evidence shows that the Veteran's left ear hearing loss did not increase during active service.  Audiometric testing performed in August 1986, about six months after the Veteran entered active service, showed puretone thresholds in the left ear of 15 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 30 decibels at 2000 Hertz, 60 decibels at 3000 Hertz, and 70 decibels at 4000 Hertz.  However, the November 1988 separation audiogram showed puretone thresholds in the left ear of 20 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 45 decibels at 3000 Hertz, and 50 decibels at 4000 Hertz.  Thus, although the August 1986 audiogram showed worse hearing loss than what was reflected in the enlistment examination, the November 1988 separation audiogram shows that the Veteran's puretone thresholds were the same or improved at all relevant frequencies except 2000 Hertz, where the puretone threshold was 20 decibels rather than 15 decibels.  Notably, the Court has held that puretone thresholds from 0 to 20 decibels constitutes normal hearing, and thus the change from 15 to 20 decibels at 2000 Hertz does not indicate hearing loss, as it remained in the normal range at this frequency.  See Hensley, 5 Vet. App. at 157, 159.  The June 2009 VA examiner also found "minimal change" at separation.  Thus, no additional hearing loss was shown by the time of separation, but rather the same or improved hearing at most frequencies, although it remained severe enough to be considered disabling.  See 38 C.F.R. § 3.385. 

Accordingly, because there was no permanent increase of left ear hearing loss during service, but rather ultimately the same or an improvement of hearing, the presumption of aggravation does not apply.  See 38 U.S.C.A. § 1153; § 3.306(a).

The presumption of aggravation also does not apply to the Veteran's second period of active service.  His January 1991 enlistment audiogram showed puretone thresholds in the left ear of 25 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 35 decibels at 2000 Hertz, 70 decibels at 3000 Hertz, and 65 decibels at 4000 Hertz.  The March 1991 separation audiogram shows puretone thresholds in the left ear of 25decibels at 500 Hertz, 15 decibels at 1000 Hertz, 35 decibels at 2000 Hertz, 65 decibels at 3000 Hertz, and 65 decibels at 4000 Hertz.  Thus, the Veteran's puretone thresholds at separation were the same or slightly improved compared to the testing results at entrance.  Accordingly, because there was no increase of left ear hearing loss during this period of active service, the presumption of aggravation does not apply.  See id.

The preponderance of the evidence weighs against a finding that the Veteran's pre-existing left ear hearing loss was aggravated by in-service noise exposure during either period of active service.  The record shows that the Veteran served as a helicopter repairman.  At the June 2009 VA examination, he reported being exposed to loud noise from running engines and auxiliary equipment without hearing protection.  He denied significant post-service occupational noise exposure from his jobs as a dump truck driver and mail carrier.  He endorsed recreational noise exposure from hunting and target shooting, but stated that he wore hearing protection when target shooting.  Audiological testing showed puretone thresholds in the left ear of 30 decibels at 500 Hertz, 50 decibels at 1000 Hertz, 80 decibels at 2000 Hertz, 80 decibels at 3000 Hertz, and 65 decibels at 4000 Hertz.  The examiner diagnosed asymmetrical bilateral sensorineural hearing loss.  The examiner opined that it was less likely than not that the Veteran's left ear hearing loss was caused or aggravated by active service.  The examiner explained that although the Veteran was reportedly exposed to loud sounds during service that can be associated with the development of hearing loss, he had a hearing loss at entry into active service with minimal change recorded at separation.  Thus, the examiner found it unlikely the Veteran's substantial decrease in hearing since separation from service was due to in-service noise exposure. 

The June 2009 VA examiner's opinion carries a lot of weight in the Board's determination, as it is supported by an explanation that is consistent with the evidence of record, and is based on a review of the pertinent medical history and the clinical findings made on examination.  See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that the probative value of medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records).

The Veteran has not submitted any competent evidence showing that his pre-existing left ear hearing loss was aggravated by in-service noise exposure.  As a lay person without appropriate medical expertise, his own opinion asserting such a relationship does not constitute competent evidence supporting his claim, as this is a medical determination that is too complex to be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Moreover, his opinion is outweighed by the findings of the VA audiologist to the contrary.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Layno, 6 Vet. App. at 469. 

Accordingly, the preponderance of the evidence shows that the Veteran's pre-existing left ear hearing loss was not aggravated by either period of active service.  Therefore, service connection is not warranted.  See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b); see also Shedden, 381 F.3d at 1166-67.

In summary, the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service 

connection for a left ear hearing loss disability must be denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER

Entitlement to service connection for a left ear hearing loss disability is denied. 




____________________________________________
P.M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs