Citation Nr: 1338889 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-06 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from April 1969 to January 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In the substantive appeal received in March 2011, the Veteran requested a travel Board hearing. Subsequently, in March 2013, the Veteran withdrew his request for a hearing. FINDING OF FACT Hearing loss did not manifest during service; there is no evidence of a hearing loss disability within one year of separation from service; and the evidence weighs against a nexus between current hearing loss and an event, injury, or disease during active military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by active military service, nor may service incurrence be presumed. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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). 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, prior to the initial rating decision in this matter, a March 2009 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting the veteran in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes that the duty to assist has been satisfied. The Veteran's service treatment records and VA medical records have been obtained and associated with the claims file. The Veteran has not identified any other outstanding records. The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. See 38 C.F.R. § 3.159(c). The Veteran was afforded VA examination in December 2010. To that end, 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 examination obtained in this case is adequate as it was predicated on a review of the claims file, contained a description of the history of the disability at issue, considered the relevant medical facts and principles and provided opinions as to the etiology of the Veteran's hearing loss. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. II. Analysis of Claim 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). Sensorineural hearing loss is considered an organic disease of the nervous system and considered a chronic disease as listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 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 there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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. In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. The Veteran asserts that his hearing loss disability is related to noise exposure during service. The Veteran's DD Form 214 reflects that his service occupation was in light weapons infantry. Therefore, his in-service noise exposure is conceded. Service treatment records do not reflect complaints or diagnoses of hearing loss. The separation examination, dated in January 1971, reflects a whisperered voice test of 15/15. The PUHLES profile at separation noted "1" for hearing, which is indicative of a high level of fitness with respect to his hearing. The Board finds that the weight of the evidence demonstrates that hearing loss did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no hearing loss complaints or symptoms during the one year period after service, and no diagnosis or findings of hearing loss of during the one year post-service presumptive period. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). The Board finds that hearing loss did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for sensorineural hearing loss are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. The Board find that a hearing loss disability has not been continuous since separation from service. VA records reflect that the Veteran initially reported complaints of hearing loss disability after service in April 1972. A report of a VA examination dated in April 1972 reflects that the Veteran complained of trouble hearing out of his right ear at times following an explosion overseas. He denied drainage or tinnitus. An audiogram showed normal hearing bilaterally. A VA audiogram dated in May 1972 also showed hearing within normal limits bilaterally. Initial post-service evidence of a hearing loss disability is shown in private treatment records dated in May 2009. The Board finds that, while the Veteran did have noise exposure in service, there is no competent evidence of a link between the Veteran's in-service noise exposure and a current hearing loss disability. A report of a private audiogram dated in May 2009 did not provide a medical opinion linking current bilateral hearing loss to service. The Veteran had a VA examination in December 2010. The VA examiner indicated that the claims file was reviewed. The VA examiner noted that the records documented hearing within normal limits when the Veteran entered service. The VA examiner noted that the Veteran did not have testing at separation. The examiner noted that hearing was within normal limits in April 1972 and May 1972, with no degradation of hearing compared with entrance exams. The VA examiner noted that there was a positive history of noise exposure in service as a light weapons infantryman without hearing protection worn. The Veteran reported post-service civilian work in logging for 28 years and construction, without hearing protection worn. He denied other noise exposure. The Veteran also reported multiple left ear surgeries in the 1970's and 1980's for a tumor removal. He denied any recent care to the left ear. An audiogram showed hearing loss disability as defined by § 3.385. The VA examiner diagnosed moderate to severe sensorineural hearing loss in the right ear and moderate to profound mixed hearing loss in the left ear. The VA examiner opined that the Veteran's claimed hearing loss is less likely than not caused by or a result of military service. The VA examiner noted that there was no documented degradation of hearing (in service) and that hearing was within normal limits post-service in 1972. The VA examiner also noted the Veteran's self-report of employment in logging and construction. VA outpatient audiology treatment records show treatment for hearing loss but do not provide medical opinions regarding the etiology of the Veteran's hearing loss disability. The evidence of record in this case does not establish a medical nexus between the Veteran's current hearing loss and service. In addition to the medical evidence, in adjudicating this claim, the Board has considered the Veteran's statements regarding his hearing loss. In statements in support of his claim, including a March 2011 substantive appeal, the Veteran asserted that his hearing was damaged during a patrol in Vietnam when a booby trap exploded. Laypersons are competent to testify as to what they observed and what is within the realm of their personal knowledge, such as a history of noise exposure. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is competent and credible in reporting that he experienced noise trauma in service. His credibility as to ongoing problems after service is diminished by the medical evidence establishing normal hearing a little more than a year of service in 1972. Further, laypersons, such as the Veteran lack the medical training and expertise to provide a competent opinion on a matter as complex as the etiology of a hearing loss disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, while the Veteran may report his noise exposure in service and symptoms of his claimed hearing loss, the weight of the medical evidence of record is against a nexus between his claimed bilateral hearing loss and service. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to service connection for bilateral hearing loss is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs