Citation Nr: 1337066 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 13-09 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from August 1964 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran had in-service noise exposure. 2. The Veteran has bilateral hearing loss disability for VA purposes during the period on appeal. 3. The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran's bilateral hearing loss is causally related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The record shows that through a VCAA letter dated November 2011 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, he was informed of the criteria for assignment of an effective date, and/or disability rating, in the event of award of the benefit sought. The VCAA letter to the Veteran was provided in November 2011, prior to the initial unfavorable decision in January 2012. The Board also finds that there has been compliance with the VCAA duty to assist provisions. The record in this case includes service treatment records, private treatment records, VA treatment records, a VA examination report, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was also offered a hearing before the Board but declined. The Veteran was afforded a VA examination in December 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiner was provided with the claims file, and the Veteran's history and complaints were recorded. The examination report sets forth detailed examination findings to include a nexus opinion with adequate bases for the opinion. As such, the examination report is adequate to decide the claim of service connection. The Veteran has alleged that because the examiner did not appear to give much weight to the Veteran's account of his in-service noise exposure and assertions that he experienced hearing loss symptoms since service, the VA examiner's opinion should carry little probative value. The Board finds this assertion to be without merit. The December 2011 examination report reflects that the examiner specifically noted the Veteran's in-service noise exposure in considerable detail. As to consideration of the Veteran's lay statements, the Board notes that during the Veteran's concurrent examination for tinnitus, the same examiner opined that based on the Veteran's lay statements regarding the onset of his tinnitus, it was more likely than not that his in-service acoustic trauma caused his tinnitus. The record reflects that on the Veteran's claim submitted in August 2011, the Veteran asserted that he has experienced tinnitus since service. The record reflects that the first time the Veteran asserted experiencing hearing loss since service occurred in his Form-9, submitted in March 2013, after the VA examination in December 2011. Furthermore, as discussed below, the VA examiner specifically noted the absence of hearing loss complaints in the Veteran's post-service treatment records. Both private and VA treatment reports reflect that the Veteran reported his hearing was normal between December 2000 and April 2011. The Board therefore finds that the VA examiner thoroughly considered all of the evidence before her, her opinion is adequate, and further examination is not necessary regarding the issue on appeal. II. Service connection for bilateral hearing loss In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). For the purposes of applying VA laws, impaired hearing will be 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 the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has experienced bilateral hearing loss as a result of in-service noise exposure. The Veteran's DD-214 reflects that at the time of discharge his military occupational specialty was military policeman. While in service the Veteran claims that he was exposed to small arms and rifle fire without the use of ear protection. The Veteran's DD-214 reflects that he was awarded the M-14 sharpshooter badge. Thus the Board concedes in-service noise exposure. Service treatment records are negative for any complaints of hearing loss or head trauma. The service medical records include a "Report of Medical Examination" in August 1964 which contains the interpreted results from a Rudmose Audiogram performed on August 31, 1964. The reported puretone threshold results, converted from American Standards Associates (ASA) units to International Standards Organization (ISO) units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 15 15 5 LEFT 35 25 15 15 10 At the May 1967 service separation examination, pure tone thresholds in decibels, also converted from ASA units to ISO units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 LEFT 10 5 5 0 In December 2011, the Veteran was afforded a VA examination. The examiner reviewed the claims file, considered the reported medical history, and noted the Veteran's report of in-service noise exposure from small arms and rifle fire. The examiner stated that, although the August 1964 "Report of Medical Examination" at enlistment provided audiometric thresholds for both ears, it was important to note that the results of the Rudmose Audiogram at that time had not been properly interpreted. (The actual audiogram results graph is of record.) It was provided that the correct results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 0 5 LEFT 15 0 0 0 0 The examiner noted that the Veteran reported his alleged hearing loss affected his daily activities, stating that the Veteran cannot always understand what is being said and that he misses parts of conversations. Pure tone threshold and Maryland CNC speech recognition tests were also conducted, the results of which were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 40 65 LEFT 15 15 30 55 65 Maryland CNC right ear: 90% Maryland CNC left ear: 94% The examiner diagnosed the Veteran with bilateral sensoneurial hearing loss and ultimately concluded that it was not at least as likely as not caused by or a result of an event in military service. In providing her opinion the examiner noted that post-service VA and private treatment records were negative for a report or complaint of hearing loss. The examiner also noted that the in-service audiograms did not demonstrate a significant shift between enlistment and separation in the Veteran's hearing acuity. The Board recognizes the Veteran's belief that his bilateral hearing loss is related to his period of active service, to include his in-service noise exposure. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a hearing loss disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran is competent to provide statements indicating that he experienced in-service noise exposure, he cannot relate his hearing loss disability to his period of active service as identifying an etiology for such hearing loss requires medical training he has not been shown to possess. Therefore, the evidence of record does not relate the Veteran's bilateral hearing loss to his military service. As discussed, the December 2011 VA examiner reviewed the claims file and was aware of the Veteran's in-service noise exposure, but ultimately concluded that it was not at least as likely that the Veteran's hearing loss was due to service. The examiner's opinion relied on post-service treatment records that reflected the Veteran had normal hearing. The examiner also noted a lack of a clinically significant shift in service in the Veteran's hearing between enlistment and separation. The Board finds the nexus opinion proffered by the December 2011 examiner to be well-reasoned and highly probative. While the Veteran claims and the Board concedes that he was exposed to hazardous noises in service, he has not submitted any additional evidence establishing a nexus between that noise exposure and his current hearing loss. Specifically, the Veteran has not identified evidence showing that he had a chronic hearing loss disability for VA purposes in service or within the one-year presumptive period following service separation. Furthermore, the Veteran has not consistently reported experiencing hearing loss since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Rather, the earliest complaint of hearing loss of record appears to be the Veteran's claim filed in August 2011, approximately 44 years after separation. The Board realizes that the mere fact that there is no documentation of these conditions for years after service is not altogether dispositive of this claim, but it is nonetheless probative evidence to be considered in deciding this claim and may be viewed as evidence against it. See Maxon v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000). Additionally, VA treatment records from December 2000, April 2011, and August 2011 reflect that the Veteran reported normal hearing. Private treatment records from March 2005, January 2006, February 2007, February 2008, April 2009, and December 2009 also reflect that the Veteran had normal hearing on those dates. The lack of documented hearing loss prior to December 2011, coupled with the documented post-service history of reports of normal hearing weigh negatively against the Veteran's claim that his in-service noise exposure caused his current condition. Finally, there are no other medical opinions of record which contradict that of the December 2011 VA examiner's opinion. For these reasons, the evidence simply does not support a finding that the Veteran's current bilateral hearing loss is related to service. The Board acknowledges that, in his Notice of Disagreement, the Veteran has cited to an IOM study in support of his bilateral hearing loss claim. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). The IOM report provided a general recommendation that audiometric testing include measurements above the 6000 Hz level and only a possibility of delayed onset hearing loss, but does not show a probability that delayed onset is likely related to in-service noise exposure. As such, the Board accords the IOM report less probative weight than the December 2011 VA examination that specifically evaluated the facts and circumstances surrounding this particular case, including the Veteran's in-service noise exposure, current bilateral hearing loss, and whether a nexus exists between the two. Additionally, 38 C.F.R. § 3.385 clearly establishes that hearing loss disability for VA purposes is determined by the auditory thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 Hz. The Veteran has also challenged the opinion provided by the examiner, stating that the examiner relied on a lack of in-service evidence of hearing loss in reaching her conclusion. See Hensley v. Brown, 5 Vet. App. 155 (1993). This argument is not factually accurate, however, as the examiner only noted that the Veteran did not have any significant shifts in his hearing thresholds during service. As discussed, the examiner ultimately relied on a number of factors in reaching her opinion, including the Veteran's reports of normal hearing while receiving both VA and private treatment following service. Finally, the Veteran has challenged the probative value of the December 2011 VA examination. However, as discussed, the VA examiner clearly considered the Veteran's in-service noise exposure as well as the evidence before her in the claims file, to include the post-service reports of normal hearing and the Veteran's lay statements up to that point. As the evidence is not in general equipoise, the benefit of the doubt rule does not apply, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs