Citation Nr: 1337784 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-16 039 ) 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 Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Carmichael, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) which denied service connection for bilateral hearing loss. FINDING OF FACT The Veteran's current bilateral hearing loss is not related to military noise exposure. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active military service, nor may service connection be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1110, 1137, 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 FINDING AND CONCLUSION Duty 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA advised the Veteran in September 2010 of information as to the evidence required to substantiate the claim, and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained the type of information and evidence needed to establish a disability rating and effective date. VA has made reasonable efforts to obtain relevant records identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, a VA examination report, and the Veteran's statements. The Board has carefully reviewed such documents and concludes that no available outstanding evidence has been identified. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran was also afforded a VA examination for hearing loss. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination is adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the Veteran's hearing loss. VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Analysis of the Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). In order to establish direct service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran served in combat, and his account of in-service noise exposure during combat is therefore presumed credible for the purposes of both development and adjudication of the claim. 38 U.S.C.A. § 1154(b). He is also diagnosed as having hearing loss. However, the preponderance of the evidence is against a finding of "nexus," showing that the disorder is related to military service. The claim will therefore be denied. Chronic diseases such as sensorineural hearing loss are presumptively service connected if they manifest to a compensable degree within the first post service year. 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." 38 C.F.R. § 3.303(b), 3.309(a). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Additionally, medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence, regardless of its date, shows that a veteran had a chronic condition in service, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes 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 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For 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, and 4000 Hertz is 40 decibels or greater; 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 speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Section 3.385 of Title 38, Code of Federal Regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. Service treatment records (STRs), including his entrance examination are negative for complaints or treatment of hearing loss. During the Veteran's November 1968 separation examination, pure tone thresholds indicated no hearing loss - ((American Standards Association (ASA) units are converted to International Standards Organization (ISO) units)): HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 - 15 LEFT 15 10 10 - 15 During a December 2010 VA examination, the Veteran demonstrated hearing loss for VA disability purposes. On examination, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 30 65 85 LEFT 5 15 35 70 75 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. The examiner noted bilateral mild to severe sensorienural hearing loss with excellent word recognition. She stated that entrance and separation examinations noted hearing within normal limits bilaterally. The examiner, who reviewed the claims folder and the Veteran's clinical history, stated that current complaints were not related to service, and there is no evidence acoustic trauma caused hearing loss during military service. There is no competent medical evidence to refute this conclusion or to otherwise suggest that hearing loss is related to service. The Veteran's own statements have also been considered. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the diagnosing of hearing loss 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) (lay persons not competent to diagnose cancer). The record also contains evidence refuting the Veteran's statement that he had symptoms of hearing loss during service as his May 1969 separation examination reported normal hearing levels. Despite the Veteran's claim that no audiogram was conducted upon separation, the record contains three documents signed by the Veteran which record his good health, at separation. These medical examinations are highly probative. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The inconsistency with which the Veteran has reported the onset and frequency of his hearing loss symptoms diminishes his credibility; thus, his statements as to continuity of haring loss symptomatology are outweighed by the fact that he did not seek treatment for hearing loss for over 40 years after his discharge. See Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). Therefore, service connection based on a theory of continuity of symptomatology is not warranted. The preponderance of the evidence is against finding that the Veteran has bilateral hearing loss that is etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs