Citation Nr: 1338985	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  07-37 924	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for hearing loss of the right ear.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel







INTRODUCTION

The Veteran served on active duty from August 1970 to October 1977, October 2001 to December 2002, and April 2004 to June 2005.  He also served in the reserves.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran requested a hearing before a Decision Review Officer at the RO; however, the Veteran agreed to an informal conference instead in January 2009.  A Board videoconference hearing was also requested and scheduled.  The Veteran failed to report for the scheduled hearing.

This case was before the Board in October 2011 and was remanded for additional development.  It is once again before the Board.


FINDINGS OF FACT

1.  The most probative evidence of record indicates the Veteran's current right ear hearing loss disability is not related to service. 

2.  The Veteran's right ear hearing loss existed prior to his October 2001 and subsequent active service, and was not aggravated by active duty service. 


CONCLUSION OF LAW

The criteria for establishing service connection for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duty to Notify and Assist

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.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  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 the 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. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, in a February 2007 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records and VA examination reports.

The Board also notes that actions requested in the prior remand have been undertaken.  Indeed, the Veteran was afforded an examination in December 2011 and an addendum was obtained in March 2012.  The case was readjudicated in a June 2012 supplemental statement of the case.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  
	
As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  Therefore, he was provided with a meaningful opportunity to participate in the claims process.  Any error in the sequence of events or content of the notice 
is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Service Connection

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, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

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).  

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 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, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2013).  The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).

A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. §§ 1111, 1137 (West 2002); see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2013).

A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013).  A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).  Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 (1996).

"[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  In such claims, the veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation.  See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption.  Horn v. Shinseki, 25 Vet. App. 231, 234 (2012).  To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease.  Id. at 235 n. 6; 38 U.S.C. § 1153.

The Board has reviewed all the evidence in the record.  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 appellant 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).

In the instant case, the Veteran seeks service connection for right ear hearing loss.  He contends that his right ear hearing loss is a result of the acoustic trauma he suffered during active service.  Specifically, the Veteran asserts that his hearing loss is due to military noise exposure while working on the flight line.  Service personnel records show that the Veteran worked on aircraft pneudraulic and hydraulic systems.  

The Board notes that the Veteran submitted an article regarding dual status (civilian/military) within the Department of Defense and the reserves.  Post service, the Veteran served as an Air Reserve Technician.  The article indicates that during the course of a year, civilians are required to perform the same jobs as the military reservists.  Thus, the evidence indicates that the Veteran has had exposure to excessive noise as a civilian and as a member of the military.  

On the Veteran's enlistment examination in July 1970, the audiological evaluation showed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
10
n/a
5

During his first period of active service, the Veteran underwent an audiogram in January 1974.  The audiological evaluation showed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
25
25
30
25

An audiological examination taken two days later in January 1974, showed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
30
25

The Veteran's audiological examination results from October 1975 were within normal limits for VA purposes.

The Veteran's separation examination in August 1977, revealed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
10
10

Audiological examinations conducted in February 1978, December 1979, April 1980, March 1982, all show that the Veteran's hearing was within normal limits for VA purposes.  

An audiogram conducted in February 1989 showed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
35
40

However, a February 1991 audiogram revealed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
15
10



Audiograms performed in March 1997 and February 1999 indicated hearing loss for VA purposes in the right ear.

An audiogram from April 2001, performed shortly before the Veteran's period of service beginning in October 2001, reflects that pure tone thresholds were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
35
60
55

On pre-deployment processing in October 2001, the Veteran was found to be qualified for worldwide service, although he was diagnosed with bilateral sensorineural hearing loss.

An audiogram performed in April 2002 indicates hearing loss for VA purposes.  Likewise, an audiogram from March 2005 reflects that pure tone thresholds were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
45
55
60

The Veteran underwent a VA audiological examination in January 2009.  The Veteran reported his military service as 7 years of active duty and 30 years in the reserves.  He stated that he worked as a hydraulic systems mechanic while in service.  In the Air Reserve, he worked as a technician.  He also reported working in an engineering office for 2 years.  The examiner noted that recreationally, the Veteran's exposure to noise included occasional drill noise, attending two loud concerts, and use of lawnmowers, leaf blowers, and chainsaws with hearing 

protection.  The audiogram revealed pure tone thresholds as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
55
55
55

The Veteran was diagnosed with sensorineural hearing loss.  The examiner noted that the audiologic test results showed normal to moderately severe sensorineural hearing loss.  The examiner opined that the Veteran's hearing loss was not aggravated by his military service.  The examiner reported that the Veteran's discharge examination after his first period of service showed hearing within normal limits with no significant aggravation of pure tone thresholds since his enlistment examination.  The examiner also noted that the Veteran had 3 periods of active service.  The examiner stated that an audiogram prior to his active duty in October 2001 showed a moderate to moderately-severe high frequency hearing loss.  The subsequent audiograms in March 2005 and at the July 2009 examination showed the same.  The examiner stated that there had been no significant deterioration of pure tone thresholds since the audiogram dated in April 2001 and concluded that there was no objective evidence of aggravation of a preexisting condition as a result of service.  

The Veteran was afforded a VA audiological examination in December 2011 to address the question of whether the Veteran's right ear hearing loss was related to his first period of service.  Upon testing, the examiner diagnosed the Veteran with sensorineural hearing loss.  The audiological evaluation showed puretone thresholds as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
60
60
60

In a March 2012 addendum, the December 2011 VA examiner reported that he had reviewed the Veteran's claims file and opined that there was no evidence of hearing loss that would be connected to the Veteran's active duty service from 1970-1974, due to the audiograms from 1977 showing normal hearing loss.  

Based on the foregoing, the Board concludes that the weight of the competent and probative evidence is against the claim.  With respect to the Veteran's first period of service, hearing in his right ear was normal at entrance.  Hearing loss disability pursuant to 38 C.F.R. § 3.385 was not shown during service, and his hearing was normal on separation examination in 1977.  Moreover, hearing loss disability was not shown on audiological examinations conducted from February 1978 to March 1982.  Thus, the question is whether the Veteran's current hearing loss disability is related to his first period of service.  On this point, the most probative evidence is the opinion of the December 2011 examiner.  The examiner conducted a comprehensive clinical examination in December 2011, reviewed the claims file and provided an adequate rationale for the conclusion in his addendum that current hearing loss in the right ear was not related to the Veteran's first period of service.  Such opinion is afforded great probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295-303-04 (2008).  There is no competent medical opinion to the contrary.  

With respect to the Veteran's second and third periods of active duty, the Board finds the Veteran's right ear hearing loss pre-existed such service.  In this regard, an examination in April 2001, a few months prior to his October 2001 active service, revealed hearing loss disability in the right ear pursuant to 38 C.F.R. § 3.385.  During pre-deployment processing, the Veteran was diagnosed with bilateral sensorineural hearing loss and placed on a permanent H-2 profile.  Thus, his hearing loss disability was "noted" prior to entrance, and the presumption of soundness does not attach. 

Turning to the question of whether this preexisting hearing loss was aggravated by the Veteran's second and third periods of active service, the January 2009 VA examiner opined that the Veteran's preexisting hearing loss was not aggravated by his periods of active duty.  The examiner noted that there had been no significant deterioration of pure tone thresholds since the audiogram in 2001.  This opinion has been afforded high probative value, as the examiner provided a clear opinion and offered the rationale after the examination of the Veteran.  See Nieves-Rodriguez, supra.  There is no competent medical opinion to the contrary.

To the extent that the Veteran himself believes that his current hearing loss disability in the right ear was caused or aggravated by his active service, the Veteran has not shown that he has specialized training sufficient to render such an opinion.  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).  In this regard, establishing the presence of hearing loss disability requires medical testing, and as hearing loss can be caused by numerous factors, medical expertise is required to determine the etiology of such.  Accordingly, the Veteran's opinion as to the etiology of his current right ear hearing loss is not competent medical evidence.  The Board finds the opinions of the VA examiners to be significantly more probative than the Veteran's lay assertions. 

In summary, the most probative evidence indicates that the Veteran's right ear hearing loss disability was not shown in his first period of service or for many years thereafter and is not related to that period of service.  Additionally, the most probative evidence also indicates that the pre-existing hearing loss during his subsequent periods of active service was not aggravated by such service.  Accordingly, the preponderance of the evidence is against the claim, and service connection is denied. 

In reaching the above 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).




ORDER

Entitlement to service connection for hearing loss of the right ear is denied.  



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs