Citation Nr: 1337849 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-08 340 ) 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 Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to September 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied service connection for bilateral hearing loss and tinnitus. The case was then remanded by the Board in March 2011 and June 2012. After completing the development requested therein, a June 2012 rating decision granted service connection for tinnitus and assigned a 10 percent, effective from June 2008. That represents a grant of the benefit sought and that issue is no longer on appeal. In June 2012, the Board remanded the case so that a VA audiological examination could be scheduled. FINDING OF FACT The Veteran's current bilateral hearing loss disability did not have onset during active service, was not caused by active service, and did not manifest within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in March 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent December 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination and medical opinion. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, service incurrence and relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disabilities. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013). Sensorineural hearing loss is considered a chronic disease. 38 C.F.R. §§ 3.303(b), 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disability. 38 C.F.R. § 3.303(a) (2013). Moreover, service connection will also be presumed for chronic disabilities, such as sensorineural hearing loss, if manifest to a compensable degree within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309 (2013). Impaired hearing will be considered a disability for VA purposes when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 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 (2011). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss, even if it does not rise to the level of disabling under VA standards. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran contends that he has bilateral hearing loss as a result of in-service acoustic trauma. A June 2012 rating decision granted service connection for tinnitus based on acoustic trauma therefore, an in-service injury is conceded. The Veteran's service medical records are silent for complaints or any diagnosis of hearing loss in service. The Veteran underwent audiological testing in April 1970 at entrance, May 1973, and August 1974, upon separation. The results showed a slight threshold shift from entrance to separation, however, all audiometric findings were within normal limits. 38 C.F.R. § 3.385 (2013). At an April 2011 VA audiological examination, audiological testing revealed test results inconsistent and did not appear to indicate maximal effort. The Veteran was reinstructed and encouraged, with no improvement. There was poor interest reliability. The test results were considered invalid and were not reported. The examiner reviewed the claims file and noted that audiometic data showed hearing within normal limits at entrance to service. Data in May 1973 and August 1974 was within normal limits. Due to normal hearing bilaterally at separation, the examiner opined that it was not at least as likely as not that hearing loss was related to service. At a July 2012 VA audiological examination, audiological testing revealed evidence of a hearing loss disability. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz. were 40, 20, 20, 10, and 10 decibels. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were 40, 30, 30, 25, and 25 decibels. Speech recognition scores using the Maryland CNC Test were 100 percent for the right ear and 94 percent for the left ear. Those results are evidence that the Veteran has a current bilateral hearing loss disability as defined by VA regulation. 38 C.F.R. § 3.385 (2013). The Veteran was diagnosed with bilateral sensorineural hearing loss. The Veteran provided additional information during the course of the examination related to his hearing. He stated that hearing loss did not impact ordinary conditions of daily life, including ability to work. The Veteran also stated there was no family history of hearing loss and denied any post-military noise exposure. The examiner opined that because the Veteran had an audiometric evaluation at the time of his separation examination that indicated his hearing was well within normal limits, and because there was no significant change in hearing thresholds between entrance and exit audiograms beyond what may occur due to test and operator variability, it was less likely than not (less than 50 percent probability) that the Veteran's hearing loss was caused by or a result of military noise exposure. The evidence of record shows a current bilateral hearing disability. However, in order to establish service connection, the evidence still needs to show a nexus linking that disability to an in-service event, disease, or injury. The Board finds that the evidence of record is against a finding that hearing loss had onset during service or has been present since service. There is no competent medical evidence showing that the Veteran's hearing loss is due to service. The Veteran first reported hearing loss in 2008 when he filed his claim. The examiner's opinion included review of the Veteran's reported history and the claims file, concluding that there was a less than 50 percent probability that the Veteran's hearing loss was caused by or related to service noise exposure. The Board finds that opinion persuasive because of the training of the examiner and because the examiner considered the Veteran's contentions and the evidence of record in the claims file, including the service records. To the extent that the Veteran believes that his hearing loss is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses, such as difficulty hearing. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not shown to have the training or expertise to provide a medical opinion as to the etiology of hearing loss. VA provided the Veteran with an examination based in part on the competency of those observations. That examination found it was less likely that hearing loss was related to the Veteran's service and the Board finds that examination to be the most persuasive evidence of record. To the extent the Veteran alleges a continuity of symptomatology, the Board finds that allegation is outweighed by a normal examination on separation. That allegation is also cast in doubt because of the poor cooperation at the April 2011 examination. The Board finds that July 2012 VA examiner's opinion more persuasive because of the training of the examiner and the evidence considered. In summary, the Board finds that the preponderance of evidence is against a finding that the Veteran's hearing loss had onset during service, and against a finding that sensorineural hearing loss manifested within one year of separation from active service. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs