Citation Nr: 1336570 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 08-21 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded this matter in May 2010, April 2012, and January 2013 for additional development. All development has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's left ear hearing loss did not have onset during and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102 , 3.303(a), (d), 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with notice in August 2007 prior to the initial decision on the claim in December 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. VA examinations and opinions with respect to the issue on appeal were obtained in November 2007, June 2010, and June 2012. 38 C.F.R. § 3.159(c) (4). 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). In May 2010, the Board found that the November 2007 VA opinion was not adequate for rating purposes because the examiner's findings were not supported by rationale. On remand, another VA opinion was obtained in June 2010; however, in April 2012 the Board found this opinion inadequate for rating purposes because the examiner provided a contradictory opinion. On remand, the RO obtained an addendum opinion, dated June 2012 which the Board finds is adequate for rating purposes. It is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. §§ 1110 (West 2002). 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases 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 (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker, 708 F.3d at 1340 (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker, 708 F.3d at 1337), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which [service connected] disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "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. 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 [service as it] 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.; 38 C.F.R. § 3.303(b). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired hearing will be considered to be 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 zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. Id. at 160. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that his current left ear hearing loss is due to noise exposure he experienced during service, which includes noise exposure while serving on a guided missile frigate that fired five inch guns. He was not provided hearing protection. In this regard, personnel records indicate that the Veteran served as a machinist's mate, and as such, he is competent to attest to factual matters of which he had first-hand knowledge. Service treatment records include the entrance and separation examinations. The October 1967 entrance examination pure tone thresholds, in decibels, were as follows: 500 1000 2000 3000 4000 Left 0 (15) 0 (10) 0 (10) -- 0 (5) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) The February 1971 separation examination does not include audiometer results; however, whisper testing was 15/15. The Veteran had a VA examination in November 2007. The audiology testing clearly shows that the Veteran has a hearing loss disability in the left ear for VA compensation purposes. 38 C.F.R. § 3.385. During the examination, the Veteran reported that he was a machinist mate and was located in a combat zone in Vietnam. He was exposed to acoustic trauma from five inch guns and missiles. On one occasion, he had to hand load the five inch gun without hearing protection. He was also exposed to engine and broiler noise. He noted a history of riding motorcycles. During the June 2010 VA examination, the Veteran also reported that the machinist mate duties exposed him to noise from power tools, engines, air compressors, and grinders. He indicated that he worked as a carpenter after service which exposed him to power tool noise. He also worked in a steel mill and was around machinery noise, loading box cars, and worked in communications installing phone lines and other devices. In June 2012, a VA examiner provided an addendum opinion based on the examination performed in June 2010. After reviewing the claims file, the examiner opined that the left ear hearing loss was less likely as not (less than 50 percent probability) incurred in or caused by the service. The examiner conceded that the Veteran may have been exposed to high risk noise levels during service but noted that the whisper test at separation failed to rule out hearing loss at discharge. The examiner found that the left ear hearing loss is not consistent with noise exposure, which usually has a negative impact on both ears, and opined that it is unlikely that military exposure had a negative impact on the left ear only. Considering all of the evidence, the examiner cannot be 50 percent or more certain that the left ear hearing loss started in the military. The Board has also considered the Veteran's statements. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, 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. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In weighing 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. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In his substantive appeal, the Veteran stated that he was exposed to all types of acoustic trauma during service and has had hearing loss since service. As noted above, the Veteran is competent to attest to factual matters such as noise exposure during service. He is also competent to report symptoms of hearing loss; however, hearing loss (sufficient to meet the requirements of § 3.385) is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to military service by lay testimony. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Furthermore, post-service medical records demonstrate that the Veteran did not seek medical treatment or complain of hearing loss until November 2004, more than 33 years after service discharge. See Maxson, 230 F.3d 1330. The Board finds that the lack of medical evidence establishing hearing problems in service or for decades afterwards outweighs the Veteran's statements of continuity of symptomatology offered many years after service and in conjunction with his filing claims for benefits. See Caluza v. Brown, 1 Vet. App. 498, 511 (1995) (citing Burns v. HHS, 3 F.3d 415, 417 (Fed. Cir. 1993)). The Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current left ear hearing loss and any incident of service, including in-service noise exposure. Here, the competent and credible evidence shows that whisper tests were normal at separation from service and that no complaints or treatment were recorded until 2004, more than 33 years after separation from service. The Board recognizes that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure" and that delayed-onset hearing loss must be considered. See Training Letter 10-02 (issued in March 2010). However, the Board relies on the opinion from the VA examiner who not only relied on the normal whisper test results, but also on medical expertise when opining that the left ear hearing loss is not consistent with noise exposure. The examiner indicated that hearing loss consistent with noise exposure usually has a negative impact on both ears, and opined that it is unlikely that military exposure had a negative impact on the left ear only. As such, service connection must be denied on a direct basis. Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic diseases of the nervous system, which includes sensorineural hearing loss, becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§3.307, 3.309. The record does not reflect a diagnosis of left ear hearing loss within one year of service separation. Accordingly, the Veteran cannot benefit from application of the presumption. Id. The Board finds that the preponderance of the evidence is against the Veteran's claims for left ear hearing loss. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Service connection for left ear hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs