Citation Nr: 1338089 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-24 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1973 to January 1975, with subsequent service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In January 2011, the Veteran and his wife presented testimony relevant to the appeal at a Travel Board hearing before a Veterans Law Judge (VLJ). A transcript of the Board hearing is of record. In September 2011, the Board determined that new and material evidence had not been received sufficient to reopen service connection for a skin disability, granted service connection for tinnitus, and remanded service connection for a bilateral hearing loss disability to obtain additional treatment records and National Guard service records, provide the Veteran with a VA medical examination with medical opinion, and, thereafter, readjudicate the appeal. The case now returns to the Board following substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In July 2012, the Board notified the Veteran that the VLJ who conducted the January 2011 hearing had retired and advised him of further hearing options. The Veteran responded that he did not want another Board hearing, and asked that the case be considered based on the evidence of record. FINDINGS OF FACT 1. The Veteran was exposed to loud noise during service. 2. The Veteran did not have chronic symptoms of right ear mixed hearing loss or left ear sensorineural hearing loss during service. 3. The Veteran has not had continuous symptoms of right ear mixed hearing loss or left ear sensorineural hearing loss since service. 4. Right ear mixed hearing loss and left ear sensorineural hearing loss did not manifest to a compensable degree within one year of service separation. 5. The Veteran currently has a right ear hearing loss disability for VA disability compensation purposes. 6. The Veteran does not have a current left ear hearing loss disability for VA disability compensation purposes. 7. The Veteran's current right ear mixed hearing loss disability is not causally related to service. CONCLUSIONS OF LAW 1. Right ear mixed hearing loss was not incurred in active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). 2. Left ear sensorineural hearing loss was not incurred in active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 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 FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims 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 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). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). This notice should 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). 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 a February 2009 notice letter sent prior to the initial denial of the claim for service connection, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain, and make reasonable efforts to obtain on the Veteran's behalf, in support of the claim. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VA employee who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the Board hearing, the VLJ identified the issue on appeal and considered the Veteran's testimony regarding in-service noise exposure, and the onset and treatment of hearing loss symptoms, evidence which pertains to the element of relationship of hearing loss to service. Based, in part, on the hearing testimony, the Board remanded the appeal to obtain additional treatment records, including employment physicals, and National Guard service records, and to provide the Veteran with a VA medical examination with a nexus opinion on the question of relationship of current disability to service, the only remaining unestablished element for service connection. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were met. Pursuant to the Board's remand directives, the Appeals Management Center (AMC) asked the Veteran, in a September 2011 letter, to complete and submit authorization and consent forms for all medical providers from whom he had received treatment for hearing loss and/or ear problems so that VA may request the records. The AMC also asked the Veteran to identify any past employment physicals showing hearing loss. The Veteran did not respond to the letter. The AMC again asked the Veteran, in a January 2012 letter, to identify treatment records that may support the appeal. In February 2012, the Veteran wrote that he had two temporary appointments at the Long Beach naval shipyard in the 1980s in the public works department; however, he also reported that the shipyard was no longer there. He also submitted copies of National Guard service records received from the California National Guard that were in his possession. Additional VA treatment records were obtained and associated with the record. Also, in December 2011, the Veteran underwent a VA medical examination in connection with the appeal. At that time, the VA medical examiner considered the Veteran's past and present hearing-related complaints and treatment, reviewed the claims file, and performed a thorough audiological examination. The VA medical examiner noted the audiometric data and speech recognition ability for each ear as demonstrated on examination, diagnosed sensorineural hearing loss for the left ear and mixed hearing loss for the right ear, and provided a medical opinion based on an accurate medical history including noise exposure, consideration of the Veteran's current complaints and treatment, and the findings shown on the audiological examination. The VA medical opinion was supported by adequate rationale. In consideration thereof, the Board finds that the VA medical examiner had adequate facts and data regarding the history and current severity of the Veteran's disability when rendering the medical opinion. See VAOPGCPREC 20-95 (interpreting that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide, so that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The Board notes that the Veteran requested to be provided with another VA audiological examination because the December 2011 VA audiologist was not veteran-friendly. He essentially argued that the December 2011 VA audiological examiner was biased against him when rendering the medical opinion in connection with the appeal. See the August 2012 statement from the Veteran. However, the audiometric testing performed by the December 2011 VA examiner revealed pure tone results for the left ear that are within normal limits for VA purposes. See 38 C.F.R. § 3.385. The Board finds no evidence of inaccuracies in the December 2011 VA audiological examination report, and the December 2011 VA medical examiner provided a sound rationale in support of the medical opinion. There is no evidence of bias against the Veteran reflected in the VA examination report, and the Veteran has provided no basis to conclude that the VA medical examiner was biased against him - other than the vague and unsupported assertion that the VA medical examiner was not "veteran-friendly." For these reasons, the Board finds the December 2011 VA medical examination and medical opinion are adequate, and no further medical examination or medical opinion is needed. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria 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; 38 C.F.R. § 3.303(a). 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). 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). The Veteran is currently diagnosed with right ear mixed hearing loss and left ear sensorineural hearing loss. See the December 2011 VA audiological examination report. Mixed hearing loss is defined as hearing loss that is both conductive and sensorineural in nature. See Dorland's Illustrated Medical Dictionary 818 (30th ed. 2003). Sensorineural hearing loss, which is a form of "organic disease of the nervous system," qualifies as a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable with respect to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. With chronic disease as such 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 for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system (e.g., sensorineural hearing loss), 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). 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. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Service Connection for Bilateral Sensorineural Hearing Loss Analysis The Veteran contends that he currently suffers from bilateral hearing loss due to military noise exposure. He asserts that he was often exposed to the loud noise of artillery without ear protection while performing his duties as a cook for an artillery unit during service. See Board hearing transcript, pages 7-9. In the form claiming service connection for hearing loss that was received in November 2008, the Veteran wrote that hearing loss began in July 1973. At the Board hearing in January 2011, the Veteran has also stated that he has had hearing problems in service and since service. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran was exposed to loud noises (i.e., suffered acoustic trauma) during service. The Veteran's DD Form 214 shows that he served as a cook, which is not a military occupational specialty typically associated with noise exposure; however, the Veteran has reported being exposed to loud noise while assigned to an artillery unit, and there is no clear indication that the account is not credible. In consideration of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances and conditions of his service and is, therefore, credible. The Board finds that the weight of the evidence is against findings of "chronic" symptoms of left ear sensorineural hearing loss or right ear mixed hearing loss during service or "continuous symptoms" since service separation. The Veteran's service treatment records are negative for chronic symptoms of bilateral hearing loss disability in service and show hearing within normal limits at the January 1975 service separation examination. Also, the lay and medical evidence does not show continuous symptoms of a bilateral sensorineural hearing loss disability since service separation. Although the Veteran testified at the Board hearing that he had difficulty passing hearing tests performed as part of employment physicals beginning in February 1975, which would be approximately one month after service separation, the Board does not find the hearing testimony to be credible because it is inconsistent with, and outweighed by, the other evidence of record, including the Veteran's own, more contemporaneous reports of symptoms regarding hearing loss or the absence of hearing loss. On the September 1976 National Guard service enlistment report of medical history completed more than a year after service separation, the Veteran checked "No" when asked if he then had or had ever had hearing loss. Also, at the September 1976 National Guard service enlistment examination, hearing was within normal limits. Regarding the assertion of continuous symptoms of hearing loss after service, the Veteran did not mention having had any hearing problems since service when he filed disability compensation claims with VA in August 1989 for other disabilities that he believed were related to service. Because it is likely that the Veteran would have accurately reported having hearing problems or hearing loss would have been detected at the time of his enlistment in the National Guard, and would have likely filed a claim for hearing loss when filing other claims in August 1989, the National Guard service records and August 1989 claim are of great probative value, and outweigh the Veteran's unsupported lay assertion that he has had hearing problems since service. The Veteran first asserted that hearing loss began in July 1973 (during service) when years later, in November 2008, he claimed service connection for hearing loss, which assertions he later repeated at the January 2011 Board hearing during the appeal of the claim. For these reasons, the Board finds that presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post-service symptoms. Additionally, the evidence does not show that the Veteran's left ear sensorineural hearing loss or right ear mixed hearing loss disability manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. The Board further finds that the Veteran currently has a right ear hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385; however, he does not have a left ear hearing loss disability as defined by the VA regulatory criteria. At the December 2011 VA audiological examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 55 45 45 LEFT 20 20 15 10 20 The speech recognition score with the Maryland CNC Test was 96 percent bilaterally. There is no indication that the audiometric results are unreliable or otherwise inadequate. The VA medical examiner noted that the Veteran demonstrated right ear mixed hearing loss and left ear sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies. The above evidence sufficiently establishes a "disability" of current right ear hearing loss as defined by 38 C.F.R. § 3.385 (referred to as "impairment"), as the auditory threshold in all of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater. For the left ear, however, the auditory threshold for all of the 500, 1000, 2000, 3000, and 4000 Hz frequency levels is less than 26 decibels and the speech recognition score is greater than 94 percent; therefore, no left ear hearing loss disability is demonstrated by the evidence. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Because a left ear hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated in this case, disability benefits are not warranted for left ear sensorineural hearing loss. On the question of nexus between current right ear mixed hearing loss disability and service, the Board finds that the weight of the evidence is against finding that the Veteran's right ear mixed hearing loss disability is causally related to the in-service noise exposure. The medical opinion evidence weighs against a finding that right ear hearing loss is related to the in-service noise exposure. After review of the record and consideration of the Veteran's in-service noise exposure, the December 2011 VA medical examiner opined that the Veteran's hearing loss disability was less likely than not related to service. When providing the rationale for the medical opinion, the December 2011 VA medical examiner explained that the Veteran's entrance and separation examinations showed hearing within normal limits bilaterally, with no evidence of a significant shift in puretone thresholds during service. The December 2011 VA medical examiner further commented that the Institute of Medicine's report on noise and military service stated that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure was extremely unlikely. The December 2011 VA medical examiner referenced the Veteran's occupational noise exposure as a truck driver without use of hearing protection. The December 2011 VA medical examiner has specialized medical expertise and training in auditory matters, had adequate facts and data on which to base the medical opinion, and provided a sound rationale for the medical opinion. There is no competent medical opinion to the contrary of record. For these reasons, the December 2011 VA medical opinion is of great probative value. Although the Veteran has asserted that his current hearing loss disability is causally related to noise exposure during service, he is a lay person and does not have the requisite medical expertise to be able to diagnose hearing loss or render a competent medical opinion regarding its cause. The etiology of the disability is a medical etiological question dealing with the origin and progression of the Veteran's auditory (nervous) system, and a hearing loss disability is diagnosed primarily on objective clinical findings and audiometric testing; thus, while the Veteran is competent to relate symptoms of hearing loss that he experienced at any time, he is not competent to opine on whether there is a link between hearing loss and active service, including military noise exposure, because such diagnosis requires specific medical knowledge and training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Additional factors weighing against a finding of nexus of right ear hearing loss to service are that the credible evidence demonstrates that symptoms of hearing loss were not continuous since service separation, and the first credible evidence of right ear hearing loss disability is not shown until many years after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). As found above, the Veteran's chronic symptoms of hearing loss did not manifest during service or to a compensable degree within a year after service separation, and there has not been a continuity of symptomatology of hearing loss since service. The December 2011 VA medical examiner opined that it was less likely than not that the Veteran's hearing loss disability was attributable to in-service noise exposure and provided a sound rationale for the medical opinion. There is no medical opinion to the contrary of record. The Board finds the Veteran's opinion that the current hearing loss disability is the result of in-service noise exposure is outweighed by than the December 2011 VA medical opinion. For these reasons, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for bilateral hearing loss (i.e., left ear sensorineural hearing loss and right ear mixed hearing loss), consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for right ear mixed hearing loss is denied. Service connection for left ear sensorineural hearing loss is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs