Citation Nr: 1337071 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-34 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2010, the Veteran testified before the undersigned Veterans Law Judge during a travel board hearing. A transcript of the proceeding has been associated with the claims file. The Veteran's claim was remanded in March 2011 for a new VA examination and to allow initial consideration of additional evidence by the RO. The Board finds that the remand directives have been completed and, therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. The issue of service connection for tinnitus has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Bilateral hearing loss did not have its onset during service or within one year of the Veteran's discharge from service and has not been shown to be the result of disease or injury incurred during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110 , 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in a July 2008 pre-adjudication letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection including what he needed to provide and what would be obtained by VA. The record reflects that VA made reasonable efforts to obtain all relevant records pertinent to the matter on appeal, including the Veteran's service treatment records, private treatment records and VA treatment records including the most recent following a remand by the Board in March 2011. The Veteran has not identified any outstanding evidence. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran was afforded a VA examination in connection with his claim in August 2008. Upon initial appellate review, the Board found the August 2008 examination inadequate and remanded the claim for a new examination. The Board now finds that the May 2011 VA examination and the opinion provided in the examination report are adequate because it provides sufficient detail so the Board can make a fully informed evaluation of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner reviewed the Veteran's claims file, recorded the Veteran's subjective complaints, and provided the proper objective tests including an audiogram and Maryland CNC speech discrimination tests for each ear. The examination report was thorough, detailed and supported by an adequate rationale. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is warranted. II. Service Connection for Bilateral Hearing Loss 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. 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, 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 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 in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); 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". When a condition may be diagnosed by its unique and readily identifiable features, such as a broken leg or a dislocated shoulder, 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 organic diseases of the nervous system, such as sensorineural hearing loss, 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 C.F.R. §§ 3.307(a)(3), 3.309(a). In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The existence of credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes) may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also notes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). The Veteran currently has hearing loss as defined by VA regulations for the purpose of entitlement to service connection. 38 C.F.R. § 3.385. In May 2011, the Veteran submitted to a VA Audiological Examination. Pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 15 15 70 80 Left Ear 25 10 20 35 55 Speech recognition scores were 96 percent for the left ear and 100 percent for the right ear. The first criteria necessary to establish entitlement to service connection has been met. Thus, the remaining questions are whether current hearing loss had its onset in service or whether it is otherwise the result of a disease or injury, to include noise exposure, in service. The Veteran contends that he has hearing loss as the result of exposure to engine noise and gunfire at close range during service. The Veteran is competent to relate a history of noise exposure. See 38 C.F.R. § 3.159(a)(2). Here, noise exposure is service is conceded because the Veteran's contention of noise exposure is consistent with the circumstances of his service. As to hearing loss during service, the Veteran's service treatment records do not document any reports of hearing difficulties or problems. A September 1965 audiogram demonstrates normal hearing bilaterally upon entrance into service. (NOTE: Service department audiometric readings prior to November 1, 1967, must be converted from American Standard Association (ASA) units to International Standard Organization (ISO) units which are now used by the military, for the most part, unless otherwise noted. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) On an audiogram performed in September 1965, pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 (20) 0 (10) 0 (10) 5 (15) 10 (15) Left Ear 0 (15) 0 (10) 10 (20) 10 (20) 5 (10) No audiogram was performed upon separation from service and the Veteran did not report any problem with his hearing on his exit examination in September 1967. At his October 2010 hearing, the Veteran stated that although he did not report any health problems on separation from service, he did notice some hearing loss prior to that time. See October 2010 Hearing Transcript. He also stated that after service he lived in a small town, could not afford hearing aids, and did not get his hearing tested until the 1990s. He stated the company that provided the 1990 audiogram is out of business, but that he had been experiencing difficulty hearing prior to that examination. Id. In connection with his claim, the Veteran was afforded a VA examination in October 2008. The examiner reviewed the claims file and the Veteran's medical history. She recognized his exposure to noise in the military and that as a civilian, between 1968 and 2006, he was exposed to some factory noise as part of his employment. The Veteran denied recreational noise exposure. The examiner performed a physical examination after which she opined that the Veteran's current bilateral hearing loss is less likely as not caused by or a result of his military noise exposure. In so doing, she noted that there was no evidence that the Veteran complained of or sought treatment for the condition in service or for many years following his separation. She specifically noted that the first documentation of hearing loss was made in April 2008. In March 2011, the Board remanded the claim for a clarifying medical opinion. The Board found that the October 2008 examiner did not provide an adequate explanation for her conclusion that the Veteran's hearing loss was less likely than not caused by his military noise exposure. The examiner based her opinion solely on the lack of medical evidence of hearing loss in service or for many years thereafter. On remand, the Board sought another opinion as to the etiology of the Veteran's hearing loss to include consideration of medically known or theoretical causes of sensorineural hearing loss and how hearing loss presents or develops in most cases when determining the likelihood that hearing loss was caused by acoustic trauma in service or by some other cause. In May 2011, the Veteran met with a different audiologist who provided him with another examination and considered all evidence of record including the Board's remand and the transcript of the Veteran's October 2010 hearing. The examiner opined, in relevant part: The Institute of Medicine has found no scientific basis for the conclusion that delayed onset hearing loss exists as a result of acoustic trauma. If hearing is normal at discharge, and there is no other evidence of significant changes in hearing thresholds suggestive of noise injury, we must conclude that it is less likely as not that the current hearing loss is due to a service related noise injury. Noise exposure does not always cause hearing loss . . . The Institute of Medicine has clearly stated that there is no way to predict if noise exposure occurs, how much if any, hearing loss would be sustained. The presence of noise exposure does not always produce hearing loss. There are multiple causes for sensorineural type hearing loss and in most cases an exact etiology cannot be determined. Sensorineural hearing loss can be caused by aging, vascular disease, viral disease, autoimmune disease, noise exposure, medications, genetics or any combination of these or other factors. We do know that auditory damage from acoustic trauma occurs instantly, which is why normal hearing results on a discharge exam so strongly suggests that any current hearing loss was not caused by military noise exposure. The examiner concluded that the Veteran's current hearing loss is less likely than not caused by or the result of noise exposure while in the military. She based this conclusion on: (1) the lack of evidence indicating that the hearing loss began in the military, (2) the 40 year absence in the record of evidence of hearing loss after service, and (3) the Veteran's long history of post service factory work noise exposure. The Board recognizes the statements of record from the Veteran's physician indicating a positive nexus between his hearing loss and service. A statement from Dr. M.T. dated in September 2008 indicated that the Veteran had decreased hearing that was felt to be secondary to loud noises, including machine gunfire close to his ears. The physician did not provide any basis or rationale for the opinion. Similarly, following the Veteran's hearing before the Board, the same physician submitted a form in November 2010 in which he checked a statement that the Veteran's hearing loss was more likely than not related to riding for 11 months in armored personnel carriers in Vietnam. He indicated that the basis of his opinion was the Veteran's stated history. He also noted that the Veteran had some noise exposure in a factory following his military service. However, he did not provide any other explanation. Indeed, he did not discuss why he believed that the Veteran's current hearing loss was related to his military service in light of the post-service noise exposure. The private physician did not review the claims file, nor did he discuss the decades-long evidentiary gap. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). A medical opinion that contains only data and conclusions is entitled to little, if any, weight. It is the factually accurate, fully articulate, sound reasoning for a conclusion that contributes probative value to a medical opinion. The Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board finds the May 2011 examination report is entitled to more probative weight than the unsubstantiated opinions offered by Dr. M.T. Based on the foregoing, the probative evidence of record is not in relative equipoise as to whether the criteria for service connection for bilateral hearing loss have been met and therefore, the claim must be denied. In coming to this conclusion, the Board acknowledges the Veteran's contention that he was a combat veteran. In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such credible evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Here, even assuming for the sake of argument that the Veteran in this case did engage in combat, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection. Instead, they ease the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). "Section 1154(b) provides a factual basis upon which a determination can be made that a particular . . . injury was incurred . . . in service but not a basis to link etiologically the [injury] in service to the current condition." Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza, supra.). Thus, the provisions of section 1154(b) apply only to the second material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. Here, the in-service injury, namely acoustic trauma, is conceded. Although the evidence of record satisfies the first and second elements necessary to establish service connection, there is no medically sound basis upon which to attribute the Veteran's post-service hearing loss to acoustic trauma experienced in service. Because the preponderance of the evidence is against the claim, the benefit of-the-doubt doctrine does not apply, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs