Citation Nr: 1338704 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-11 395A ) 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 Brittany Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, inter alia, denied the Veteran's claim for service connection for bilateral hearing loss. In September 2010, the Veteran filed a Notice of Disagreement. The RO then furnished the Veteran a Statement of the Case in May 2012, and the Veteran filed a Substantive Appeal, Form 9, in May 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents, including VA medical records dated from October 2004 to January 2010, are potentially relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. The Board notes that there is no paperless, electronic VBMS claims file associated with the Veteran's claim. FINDING OF FACT Hearing loss disability was not shown in service or for many years thereafter, and the most probative evidence fails to link the current disorder to 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, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implantation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this appeal, in a February 2010 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection. This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The February 2010 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The September 2010 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the February 2010 letter meets the VCAA's timing of notice requirement. Further, the Veteran has been medically evaluated in conjunction with his claim for service connection for bilateral hearing loss in April 2010. The Board notes that the VA examiner correctly recited the Veteran's pertinent medical history and examined the Veteran's disability. It is thus clear that the examiner had the information required to properly consider the Board's inquiries. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The resulting medical opinion is considered adequate for adjudication purposes as it is based on consideration of the Veteran's medical history and describes the relevant disability in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment records, VA treatment records, private treatment records, a report of VA examination in April 2010, and the Veteran's statements. The Board also finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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, 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. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current hearing loss is due to acoustic trauma that he incurred during service. Specifically, he alleges that he incurred hearing loss in his duties as an infantryman in service. He further asserts that he was not provided any hearing protection during service. He alleges that the onset of his bilateral hearing loss was during service, in 1970. (See January 2010 claim) For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Satisfactory evidence is credible evidence. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). This provision does not establish a presumption of service connection. Rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service. Both of those inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997). Service personnel records show that the Veteran received awards, including the Combat Infantryman Badge. This award is indicative of combat. Therefore, the Board finds that the combat presumption applies in this case. Furthermore, the Veteran's military occupational specialty (MOS) was light weapons infantryman. The Board notes that noise exposure is consistent with the duties and circumstances of being an infantryman, as well as with the circumstances and conditions of combat. As such, the Board concedes the occurrence of the in-service acoustic trauma. Service treatment records are negative for any complaints, diagnoses, or treatment for bilateral hearing loss. The Veteran's June 1969 enlistment examination reflects that the Veteran's hearing was found to be normal. Audiometric testing at that time revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 --- 20 LEFT 0 5 0 --- 0 On separation examination in March 1971, the Veteran denied any ear trouble or hearing loss on an accompanying report of medical history, and his ears were found to have no abnormalities. Audiometric testing at that time revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 --- 0 LEFT 0 0 0 --- 0 VA medical records dated from October 2004 to September 2011 show that the Veteran complained of and received intermittent treatment for his hearing loss. VA treatment records include a March 2010 audiology consultation, which was requested by the Veteran's primary care physician. The Veteran was diagnosed with mild to profound sensorineural hearing loss at 1000-8000 Hz. Word recognition scores were 80 percent for the right ear and 96 percent for the left ear. At that time, the Veteran was educated regarding his hearing loss and scheduled for a hearing aid fitting appointment. The audiologist did not comment on the etiology of the Veteran's hearing loss or otherwise link it to his period of service, and none of the Veteran's treating providers related his hearing loss to his period of service. On VA examination in April 2010, the Veteran reported that he was a light weapons infantryman in the Army from 1969-1971. The Veteran served in combat, where he was exposed to explosions, rifle fire, and artillery without the use of hearing protection. The Veteran additionally asserted that he had occupational noise exposure working as a carpenter installing dry wall for 35 years. He indicated that he wore hearing protection during that time. Additionally, the Veteran enjoyed recreational hunting while using hearing protection. Upon audiometric testing, the examiner diagnosed the Veteran with sensorineural hearing loss at 1000-8000 Hz bilaterally. Word recognition scores were 90 percent and 92 percent in the right and left ears, respectively. The examiner opined, after carefully reviewing the claims file and the medical literature, that the Veteran's hearing loss was less likely than not caused by or a result of acoustic trauma. The examiner noted that the Veteran's entrance and separation evaluations were within normal limits bilaterally. Additionally, his audiometric configuration at separation was not consistent with acoustic trauma, nor did his findings meet the criteria for service connection. The examiner conceded that the Veteran's MOS and Combat Infantryman Badge decoration suggested his exposure to significant noise, but the evidence of its existence was not revealed at separation. The examiner, when evaluating the Veteran's current degree of hearing loss, could not rule out contributions from his civilian career and aging effects. Based on the foregoing, the Board finds that the Veteran's assertions of exposure to noise during service are credible and consistent with the circumstances and conditions of his service as a light weapons infantryman. In addition, the above-cited medical evidence of record reflects that the Veteran currently has a diagnosis of bilateral hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. However, the evidence fails to persuasively establish a medical nexus between the diagnosed hearing loss and service. The Board reiterates that the Veteran's service treatment records are negative for any bilateral hearing loss. Indeed, on separation examination in March 1971, the Veteran denied having any hearing loss or ear trouble. The Veteran's statement regarding his lack of hearing loss symptoms is highly probative, as it was made contemporaneous with his service. Therefore, the Board finds that the evidence does not show that the Veteran had a chronic hearing loss disability in service. In addition, sensorineural hearing loss was not clinically shown to a compensable degree within one year following the Veteran's discharge from service. Therefore, service connection for bilateral hearing loss is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The Board finds the VA examiner's opinion to be highly probative to the questions at hand. The examiner was an audiologist who possesses the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided an adequate rationale in determining that the Veteran's hearing loss was less likely as not caused by acoustic trauma he had in service. His opinion was based, at least in part, on examination and interview of the Veteran. The examiner also reviewed the Veteran's claims folder, which contained his service treatment records and post-service medical evidence. Additionally, the VA examination report expressly demonstrates the examiner's review of the Veteran's medical and occupational history, both during service and after separation, including his report of wearing hearing protection after service. In determining that it was less likely as not that the Veteran's hearing loss was related to acoustic trauma in service the examiner cited he relied on medical literature. He also specifically noted that the Veteran's hearing was normal in service and that his audiometric configuration at separation was not consistent with acoustic trauma. Moreover, he related that when determining the [etiology] of the Veteran's hearing loss he could not rule out contributions from his civilian career and the aging effect. It is clear that the examiner took into consideration all relevant factors in giving his opinion. While the Veteran's representative tends to suggest that the examiner's rationale was not adequate as his opinion was based on no hearing loss in service, the Board observes that the rationale was based on many factors, to include the Veteran's service treatment records, the audiometric findings in service, medical literature, and medical principles concerning hearing loss which is due to acoustic trauma. The Board also notes that the examiner was quite aware of the Veteran's noise exposure after service and his report of wearing hearing protection. In light of the support the examiner gave for his opinion, the Board finds that the opinion does contain sufficient rationale and that it is probative in adjudicating the claim of service connection. The Board notes that the only contrary opinion of record comes from the Veteran himself, who believes there is a link between his in-service noise exposure and current bilateral hearing loss. As the Veteran has been diagnosed with bilateral sensorineural hearing loss (organic disease of the nervous system), a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2013), service connection based on a theory of continuity of symptomatology can also be warranted under 38 C.F.R. § 3.303(b) (2013) for his bilateral hearing loss. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, while the Veteran can competently report the onset and continuity of hearing loss symptoms, an actual diagnosis of sensorineural hearing loss requires objective testing to determine whether it is severe enough to be considered a disability for VA compensation purposes, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to his current hearing loss requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran himself believes that his current bilateral hearing loss is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his current bilateral hearing loss is not competent medical evidence, as such question requires medical expertise to determine. Id. In sum, the Board finds that the preponderance of the evidence indicates that the Veteran did not have a chronic hearing loss disability in service, and there is no competent and credible evidence indicating he had hearing loss manifested to a compensable degree within a year following discharge from service. Likewise, the weight of the competent and probative evidence does not show the Veteran's current bilateral hearing loss is related to his period of service, to include his exposure to noise therein. Accordingly, service connection for bilateral hearing loss is not warranted on any basis. In reaching this conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs