Citation Nr: 1337545	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  11-31 750	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


ATTORNEY FOR THE BOARD

J. Ragheb, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, had active military service from June 1966 to May 1968. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. 


FINDINGS OF FACT

1. The Veteran had exposure to acoustic trauma in service.

2. The Veteran did not experience chronic symptoms of hearing loss during service and did not have hearing loss at separation from service.

3. Hearing loss did not manifest to a compensable degree within one year of separation from service and is not related to service.

4. There is no nexus between the Veteran's current hearing loss disability and the acoustic trauma he was exposed to during service.


CONCLUSION OF LAW

The criteria for establishing service connection for bilateral hearing loss have not been met.  38 U.S.C.A §§ 1101, 1110, 1111, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 

In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in December 2010, to the Veteran.  This letter explained the evidence necessary to substantiate the Veteran's claim for service connection as well as the legal criteria for entitlement to such benefits.  The letter also informed him of his and VA's respective duties for obtaining evidence.  The rating decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist a veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4) (2013).

In this case, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as the Veteran's own statements in support of his claim.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  See 38 U.S.C.A. § 5103A(d) (West 2002); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341(Fed. Cir. 2002).
 
The Veteran was examined by VA in connection with his claim for service connection for bilateral hearing loss in February 2011, followed by an addendum opinion in April 2011, and another addendum opinion in December 2011 based on a request for clarification from the RO.  The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal.  The examination reports contain all the findings needed to evaluate the claim for service connection, including the Veteran's history and clinical evaluation.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims.

Service Connection for Bilateral Hearing Loss

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a) (West 2002).  In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by a veteran or on his or her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).  The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

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, supra, 1 Vet. App. at 57.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (201).  Service connection may 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) (201).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

If the record demonstrates a veteran engaged in combat with the enemy in active service during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the Veteran.  38 U.S.C.A. § 1154(b) (West 2002).  Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  Id. 

Sensorineural hearing loss, which is an organic disease of the nervous system, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection.  38 C.F.R. § 3.303(b) (2012). 

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such 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. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 

Generally, lay evidence is 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 

Notwithstanding the above, 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.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever);  38 C.F.R. § 3.159(a)(2) (2013).

Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg.  Jandreau, 492 F.3d 1372, 1376-77.

Here, the Veteran is claiming entitlement to service connection for bilateral hearing loss.  For the purposes of this claim, the threshold for normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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 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 (2013).

Before proceeding, the Board observes that prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966.  However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967.  The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units.  Therefore, service department audiometric readings prior to October 31, 1967 are converted from ASA units to ISO units.  In order to facilitate data comparison in the discussion below, ASA units have been converted to ISO units.

The Veteran contends that he has a bilateral hearing loss disability that is related to acoustic trauma during active service.  

According to the February 2011 VA audiological examination, the Veteran has impaired hearing for VA purposes; as such, the Board finds that the Veteran has a current hearing loss disability.  See 38 C.F.R. § 3.385 (2012).

The Veteran avers that he was subjected to loud noise when he was involved in combat in Vietnam.  The Veteran contends that he was exposed to the noise of gunfire, artillery fire, howitzers, mortars, bombs, planes, and helicopters while in combat.  The Board finds that the evidence demonstrates that the Veteran was exposed to acoustic trauma in service.  His DD Form 214 shows that he served in Vietnam and that he was awarded the Combat Infantry Badge and other military awards.  As such, the Board finds his contentions regarding military noise exposure to be credible.  38 U.S.C.A. §§ 101(29)(A), 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (201).

However, the service treatment records do not show complaints, treatment, or a diagnosis of a bilateral hearing loss disorder.  At the June 1966 entrance examination, after converting from ASA units to ISO units, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
10
10

5
LEFT
15
10
10

30

The Board acknowledges that the enlistment audiogram demonstrated two thresholds above 20 decibels, indicating some degree of hearing loss.  See Hensley, 5 Vet. App. at 15  . However, the examining physician did not diagnose hearing loss, nor did the Veteran make any complaints of hearing loss at the enlistment examination.  Thus, there was no hearing loss disability "noted" at the time of enlistment, and the presumption of soundness applies.  See 38 U.S.C.A. §1111. 

At the time of separation from service, the October 1968 separation examination provides that the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0

0
LEFT
0
0
0

20

As such, the separation examination report shows no degree of hearing loss and no abnormalities with regard to the Veteran's hearing were noted.  See Hensley, 5 Vet. App. at 157.  Moreover, an April 1968 Report of Medical History, completed by the Veteran himself, indicates he denied that he has experienced any hearing loss.  Thus, the hearing thresholds recorded at separation actually improved as compared to those recorded at the time of enlistment, demonstrating that symptoms of hearing loss were not present or chronic during active service.  Indeed, the Veteran never asserted he experienced any hearing loss disability during service.  Based on the foregoing, the Board finds that the Veteran did not have a chronic hearing loss disability during service.

This does not in itself preclude a grant of service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Again, service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2013).  Nevertheless, after a full review of the record, the Board finds that the weight of the lay and medical evidence does not demonstrate that hearing loss had its onset in service, was manifest to a compensable degree within one year of separation from service, and is not related to service for the reasons discussed below.

During the February 2011 VA medical examination, the Veteran indicated to the examiner that the onset of symptoms of his hearing loss was "at least 30 years" ago.  This indicates that the Veteran did not start suffering from symptoms of hearing loss until approximately 1981, which is 13 years after his separation from active service.  As such, the Board finds that the Veteran's bilateral hearing loss did not manifest to a degree of 10 percent or more within one year after the date of separation from such service; therefore, presumptive service connection is not applicable in this case.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013)

Where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Sensorineural hearing loss is listed under 38 C.F.R. § 3.309(a).  Nevertheless, since the Veteran himself indicated during the February 2011 VA examination that the onset of his hearing loss symptoms did not start until approximately 1981, service connection based on continuity of symptomatology is not applicable in this case. 

The Board now considers whether there is a nexus between the conceded acoustic trauma and the current bilateral hearing loss disability.

The Board observes the Veteran was diagnosed with a hearing loss disability first in February 2011, approximately 42 years following the Veteran's separation from active service.  See February 2011 VA examination report.  Moreover, as indicated above, during the February 2011 VA examination, the Veteran indicated to the examiner that the onset of his heating loss symptoms was approximately in 1981, which is 13 years after his separation from active service.  This significant lapse in time between service and the first diagnosis of a hearing loss disability weighs against the Veteran's claim.  The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc).  

The Board acknowledges the Veteran's assertions that his current hearing loss disability is related to service.  However, while the Veteran is competent to report symptoms observable to a layperson, he is not competent to independently opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Consequently, his lay assertions of medical etiology cannot constitute evidence upon which to grant the claim for service connection.  Lathan v. Brown, 7 Vet. App. 359, 365 (1995).

Finally, in the April and December 2011 addendums to the February 2011 VA examination, the examiners opined that the Veteran's current bilateral sensorineural hearing loss is not due to the acoustic trauma the Veteran was exposed to during service.  The examiners provided adequate rationales for their opinions based on the examiners' clinical experience and medical expertise as well as established medical principles.  Specifically, the April 2011 examiner found that the Veteran's hearing impairment is less likely as not caused by or a result of military noise exposure because the Veteran had normal bilateral hearing at his separation from service and there is no evidence of significant shift in thresholds from entry to separation from service.  Moreover, quoting literature from the Institute of Medicine, the December 2011 examiner opined that "the delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is "extremely unlikely."  The Board finds the examination and addendums highly probative with regards to the lack of an etiological link between the Veteran's in-service acoustic trauma exposure and his current hearing loss disability.  The December 2011 VA examination addendum provided clarification to the previous opinions and the rationales discussed included the situation that if no audiometric testing is documented upon discharge, it is not possible to determine if noise induced hearing damage occurred in military service and thus, giving the benefit of the doubt, the current hearing loss is due to military noise exposure.  In this case there was audiometric testing in service and in the context of the opinion, this rationale is not applicable and does not constitute a positive nexus opinion.  

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a hearing loss disability, and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107 (West 2002).


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
K. J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs