Citation Nr: 1336818 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-10 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The appellant had service with a Reserve unit, which included a period of active duty for training (ACDUTRA) from July 1968 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that continued the denial of service connection for bilateral hearing loss. In May 2011, the appellant testified before a Decision Review Officer (DRO) at the RO in Boise, Idaho. A transcript of the hearing is associated with the claims file. FINDING OF FACT Bilateral hearing loss did not have its clinical onset in active service and is not otherwise related to active service. CONCLUSION OF LAW Bilateral hearing loss was not incurred or aggravated during active service. 38 U.S.C.A. §§ 101(24), 1110 (West 2002); 38 C.F.R. §§ 3.6(a), 3.303 (2011). 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 appellant was provided with a notification letter in June 2010 that fully addressed all notice elements and was sent prior to the July 2010 RO decision in this matter. The letter informed the appellant 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. Moreover, as the claim for service connection for bilateral hearing loss is denied, no disability rating and effective date will be assigned as a matter of law. Therefore, there can be no possibility of any prejudice to the appellant with respect to any defect in the VCAA notice required under Dingess, at 19 Vet. App. 473. See VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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 appellant's service personnel records have been obtained. These records show that he was awarded a Marksman medal, and that during his ACDUTRA he had a military occupational specialty (MOS) as Aircraft Maintenance Specialist. They also confirm his ACDUTRA from July 1968 to November 1968. The appellant's service treatment records (STRs) and private medical records have also been obtained. The appellant was afforded a VA examination in July 2010, which was adequate because the examiner reviewed the claims file, considered the contentions of the appellant, and provided a supporting rationale for the conclusion reached. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With respect to the May 2011 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 issue of entitlement to service connection for hearing loss. The RO official further suggested the submission of any additional hearing tests conducted between service and the most recent VA exam. Finally, neither the appellant 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 appellant's appeal. II. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24) ; 38 C.F.R. § 3.6(a). When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. Id.; 38 U.S.C.A. § 1110; Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of active duty for training would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of the active duty for training alone. See Acciola, 22 Vet. App. at 324. 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. Although certain chronic diseases such as sensorineural hearing loss may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active duty, this presumption does not apply to ACDUTRA or INACDUTRA claims. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (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 claimant 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 appellant has been diagnosed with moderately severe hearing loss in the right ear and moderately severe to profound hearing loss in the left ear. He contends that his service as an aircraft maintenance specialist in the Air National Guard entitles him to service connection for bilateral hearing loss. Service treatment records include audiograms from July 1968, August 1970, January 1972, July 1972, and June 1973. At his July 1968 enlistment audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 0 25 LEFT -10 -10 0 0 0 In an August 1970 evaluation, nearly two years after the appellant's period of ACDUTRA ended, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 15 35 LEFT 15 10 10 20 10 Puretone thresholds recorded in a January 1972 evaluation were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 10 30 LEFT 10 0 5 5 15 In July 1972, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 10 40 LEFT 10 0 0 10 10 Finally, in June 1973, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 35 LEFT 10 5 10 10 20 The appellant complained of hearing loss in a September 2009 letter to prison medical staff requesting a hearing aid. The appellant stated that he had not been able to hear for the past twelve years, and had received an audiogram confirming hearing loss in August 2009. Thereafter, the appellant received several private audiological exams and consultations between October 2009 and May 2010 that confirmed current bilateral hearing loss. The appellant was provided with a VA audiometric examination in July 2010. The examiner reviewed the appellant's medical history and noted that, while the appellant had mild hearing loss in the right ear at 4000 Hz in 1972, his hearing seemed to improve in 1973 and was within the VA definition of normal upon separation. The appellant stated that his hearing loss began in service when he worked on a flight line for the Air Force. Double ear protection was worn. The appellant denied noise exposure in work or recreationally. The appellant also reported that both of his parents had hearing loss in their later years. He denied any history of middle ear pathology but has been given ear drops for an unknown reason by a physician within the last 8 years. Puretone threshold levels were: HERTZ 500 1000 2000 3000 4000 RIGHT 65 60 75 75 70 LEFT 65 65 75 85 95 Speech recognition scores were 24% for the right ear, and 56% for the left ear. The VA examiner diagnosed the appellant with moderately severe hearing loss in the right ear, and moderately severe to profound hearing loss in the left ear. The examiner noted that the appellant exaggerated test results, and opined that the appellant's hearing loss was less likely as not related to in-service noise exposure. The examiner based his opinion on the rationale that the appellant's hearing was normal by separation and that the appellant had not sought medical treatment for hearing loss until 2009. At the appellant's May 2011 hearing, the appellant 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 VA audiology examination confirms that the appellant currently has bilateral hearing loss. Moreover, the appellant is considered competent to relate a history of noise exposure 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 July 2010 VA examiner found no link between any current hearing loss and military service based on the record, even after taking into account the appellant's claims of noise exposure. Noting that the evidence did not show any hearing loss at the appellant's separation from service, the VA examiner determined that the appellant's current hearing loss was not caused by or a result of his military service. The appellant has not specifically claimed that hearing loss symptoms continued since service, though his representative did so in a May 2013 informal hearing presentation. However, the appellant stated in 2009 that he had been having trouble hearing announcements for the past 12 years, which would antedate a hearing loss to only about 1997. During his VA examination, he placed the onset of hearing loss in service. Prior to that time, he claimed only that acoustic trauma was experienced in service. There is no consistent claim that hearing loss began during a period of active service and continued since then and the clinical record does not support this either. The clinical evidence shows normal hearing when the Veteran was periodically examined while in the Reserves. The exception is a June 1972 audiogram that showed a hearing loss for VA compensation purposes. An audiogram a year later revealed normal findings and the VA audiologist concluded that it was unlikely that hearing loss had its onset in service or was due to acoustic trauma experienced therein. The medical opinion includes a rationale and is supported by the record. The Board finds it persuasive and of high probative value. 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. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs