Citation Nr: 1337100	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  13-01 013	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia



THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.



REPRESENTATION

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



ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel
 





INTRODUCTION

The Veteran served on active duty from January 1966 to January 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
 

FINDING OF FACT

A bilateral hearing loss disability was not affirmatively shown to have had onset during service; a bilateral hearing loss disability of the sensorineural type was not manifested to a compensable degree within one year from the date of separation from service; and a bilateral hearing loss disability first shown after service beyond the one year presumptive period for sensorineural hearing loss as a chronic disease, is unrelated to an injury, disease, or event, including noise exposure, in service.


CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 




Duty to Notify

When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 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, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre-adjudication VCAA notice by letter, dated in December 2011.  

As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  






Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records and VA records and private medical records. 

The Veteran was afforded a compensation examination in July 2012.  As the compensation examination was based on a review of the Veteran's history and as the VA examiner described the disability in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110. 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  



This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

For a veteran who served 90 days or more of continuous, active service, and a chronic disease, such as sensorineural hearing loss as an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

Service connection may also be granted for a 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).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these 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.






Evidentiary Standards

VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  The Veteran does not argue and the record does not show that the claimed disability was the result of participation in combat with the enemy, and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. 

Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

Competent lay evidence means 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. 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159. 

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran.  38 U.S.C.A. § 5107(b). 



Facts

The Veteran's DD Form 214 shows he was an artilleryman.

The service treatment records show no complaint of hearing loss, ear infection, or other ear problems.  On enlistment examination in September 1965, the Veteran gave a history of no hearing problems.  An audiogram at that time showed pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz of 10, 5, 0, 5, and 0 dB in the right ear, and 15, 5, 10, 0, and 10 dB in the left ear, after conversion to International Standards Organization (ISO) units.

On a separation examination in November 1967, the Veteran gave a history of no hearing loss.  An audiogram at that time showed pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hertz of 0, 5, 0, and 0 dB in the right ear, and 5, 0, 5, and 5 dB in the left ear.

After service, the Veteran worked as an auto body repairman for 25 to 30 years.  He stated that his only noise exposure was a sander.

On VA audiological examination in July 2012, the Veteran complained of hearing loss and tinnitus.  He was "unsure" when the hearing loss had its onset.   An audiogram showed pure tone thresholds, in decibels, at 500, 1000, 2000, 3000 and 4000 Hertz of 15, 20, 20, 25, and 40 dB in the right ear, and 15, 20, 20, 50, and 65 dB in the left ear.  Speech discrimination testing was 92 percent in the right ear and 84 percent in the left ear.

The VA examiner conducted a full audiological examination of the Veteran, including an interview, audiogram, and a review of the service treatment records. The diagnosis was sensorineural hearing loss.  The VA examiner expressed the opinion that the current hearing loss was not caused by or the result of the Veteran's military service based on the Veteran having completely normal hearing on the separation audiogram.  


The rationale was that although the Veteran had noise exposure from field artillery, and no significant post-service occupational or recreational noise exposure, the Veteran did not relate hearing loss to onset in service. 

Analysis

The Veteran is competent to describe noise exposure in service, which is within the realm of the Veteran's personal experience, and his statements as to noise exposure are consistent with the circumstances of his service as shown by his service records.  See 38 C.F.R. § 3.159 (Competent lay evidence means 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); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness).

The Veteran's noise exposure in service answers the question of what happened, but does not answer the questions of a current disability, that is, a bilateral hearing loss disability under 38 C.F.R. § 3.385, or of a relationship or nexus to noise exposure in service and a current hearing loss disability.  Competent and credible evidence is still required to establish a current hearing loss disability and nexus to noise exposure in service.  

The service treatment records show that on the separation audiogram the decibel thresholds for the tested frequencies for each ear were 20 decibels or less, that is, within normal limits.  And a hearing loss disability was not affirmatively shown to have inception in service. 




A hearing loss disability of the sensorineural hearing type is recognized as "chronic" disability under 38 C.F.R. § 3.309(a), and the provisions of 38 C.F.R. § 3.303(b), pertaining to chronicity and continuity of symptomatology apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

For the showing of a chronic disability in service there is required a combination of manifestations sufficient to identify the disability and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).

Although there was evidence of noise exposure is service, hearing measured by an audiogram was within normal limits.  On the basis of normal hearing levels in each ear on the separation audiogram, the service treatment records lack the documentation of the combination of manifestations sufficient to identify a bilateral hearing loss disability under 38 C.F.R. § 3.385 and insufficient observation to establish chronicity at the time.  Considering the service treatment records only, affirmative inception of a chronic hearing loss disability under 38 C.F.R. § 3.385 is not shown.

As the Veteran is competent to describe impaired hearing, but not a hearing loss disability under 38 C.F.R. § 3.385, service connection based on continuity of symptomatology applies.  Continuity of symptomatology requires evidence of a nexus between the current disability and the postservice symptoms.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (continuity of symptoms requires evidence of a nexus between the current disability and the postservice symptoms, which are identical to the symptoms that began in service).     

While a bilateral hearing loss disability was not affirmatively shown to be present in service and the evidence is insufficient to establish chronicity during service, the Veteran is competent to describe noise exposure and symptoms of impaired hearing since service.  38 C.F.R. § 3.159; Layno, at 71.  To this extent, the Veteran's lay statements of impaired hearing since service are competent evidence of postservice continuity of symptomatology. 



The Veteran asserts that his current hearing loss disability is a continuation of the impaired hearing he experienced after service, which is an expression of a causal relationship or nexus between the current disability and continuity of symptoms. As the statement is an inference based on facts, it is an opinion rather than a statement of fact.

The Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addition to describing symptoms of impaired hearing, which is capable of lay observation, the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current bilateral hearing loss disability and the postservice symptomatology.  

A hearing loss disability under 38 C.F.R. § 3.385 is not simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, without specialized education, training, or experience in interpreting an audiogram, such as a an audiologist or other medical professional, who is trained to administer and interpret an audiogram. 

Also a hearing loss disability under 38 C.F.R. § 3.385 extends beyond an immediately observable cause-and-effect relationship, and a hearing loss disability under 38 C.F.R. § 3.385 is not a type of condition under case law that has been found to be capable of lay observation.  See Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). 



Applying the guidance of current case law, a hearing loss disability under 38 C.F.R. § 3.385 is more analogous to an internal process than a broken leg.  For this reason, a hearing loss disability under 38 C.F.R. § 3.385 is not a type of condition under case law that has been found to be capable of lay observation. 

Although the Veteran is competent to describe impaired hearing, the Veteran is not competent to state that the impaired hearing had reached the level of a disability under 38 C.F.R. § 3.385, which is measured by audiometric testing.

As a hearing loss disability under 38 C.F.R. § 3.385 is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition under Jandreau, any inference based on what is not personally observable cannot be competent lay evidence. 

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify or diagnose a hearing loss disability under 38 C.F.R. § 3.385 or to offer an opinion on the causal relationship or nexus between the current hearing loss and the continuity of symptoms that the Veteran avers. 

For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between the current hearing loss and the postservice symptomatology.  

Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology.  As the evidence is not admissible, the Board need not reach the credibility of the evidence. 






Although service connection is not established under either 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b) on the basis of lay evidence, service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Where, as here, there is a question of the presence or a diagnosis of a hearing loss disability under 38 C.F.R. § 3.385, which is not capable of lay observation by case law, and the disability is not a simple medication condition under Jandreau for the reason expressed, to the extent the Veteran's lay evidence is offered as proof of the presence of a hearing loss disability under 38 C.F.R. § 3.385 in service and since service and before 2009, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim.

Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional.  Jandreau, at 1377.  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

As for the Veteran reporting a contemporaneous medical diagnosis, the medical evidence shows that a hearing loss disability under 38 C.F.R. § 3.385 was not shown until 2012, more than 40 years after separation from service in 1968 and well beyond the one year presumptive period for a sensorineural hearing loss disability as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309.  






As for symptoms described by the Veteran that later support a diagnosis by a medical professional, no medical professional has attributed the current bilateral hearing loss disability to an injury, disease, or event, including noise exposure, in service.

The only competent medical evidence of record pertaining to causation or a nexus to service consists of the report of VA examination.  The VA examiner, an audiologist, expressed the opinion the Veteran's current hearing loss was not caused by or the result of military service.  The VA examiner explained that the Veteran was unsure when hearing loss began and it was not noted until 40 years after service.  The opinion of the VA examiner constitutes competent and persuasive medical evidence with respect to the onset of bilateral hearing loss under 38 C.F.R. § 3.385 and a nexus to service, which opposes rather than supports the claim.

The opinion was rendered by an audiologist, who reviewed the Veteran's file and supported the conclusion reached in the opinion with reasoned analysis and who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion.  A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight.  There is no medical evidence to the contrary.  The Board therefore finds that the Veteran's lay evidence in describing symptoms of impaired hearing in service and since, which is capable of lay observation, is outweighed by the competent medical evidence.

As there is no competent lay evidence on the material issue of fact, namely, a nexus to service and no medical evidence in favor of the claim, the preponderance of the medical evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

      (The Order follows on the next page.). 








ORDER

Service connection for a bilateral hearing loss disability is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs