Citation Nr: 1339157 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 12-28 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from July 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Reno, Nevada, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for a bilateral hearing loss disability. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper files or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran does not have a current right ear hearing loss disability pursuant to 38 C.F.R. § 3.385. 2. The Veteran's current left ear hearing loss disability cannot be satisfactorily disassociated from acoustic trauma experienced during active service. CONCLUSIONS OF LAW 1. The Veteran's left ear hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The Veteran's claimed right ear hearing loss disability was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.159 and 3.326(a). Under VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide. See also 38 C.F.R. § 3.159(b)(1). A VCAA letter dated in December 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was advised of the information and evidence necessary to substantiate a claim for service connection. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). Therefore, the Board finds that the duty to notify has been satisfied. The Board also concludes VA's duty to assist has been satisfied. The Veteran's private medical records have been obtained and associated with the claims file. The Veteran has at no time referenced any outstanding medical records that he wanted VA to obtain or that he felt were relevant to the claim. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). A VA examination was conducted in May 2011; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The May 2011 examiner performed all of the required audiology testing needed to determine the existence of a hearing loss disability. As will be discussed in greater detail below, the examiner's diagnosis and opinions were based on reviews of the claims file and available medical records, the Veteran's reported medical history and current symptoms, and audiology results. The Board, therefore, finds the May 2011 VA examination report and opinion to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection for a bilateral hearing loss disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). There is no indication in the record that any additional evidence, relevant to the Veteran's bilateral hearing loss service connection claim is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. Accordingly, the Board will address the merits of the claim. Law and Regulations- Service Connection of Hearing Loss Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). The determination of whether a veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores 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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran contends that he has a bilateral hearing loss disability related to his active service. Specifically, he asserts that as an electrical power specialist, he was exposed to excessive acoustic trauma from diesel engine generators, helicopters, explosions, and artillery. Furthermore, the Veteran reported that hearing protection was not made available to him as a precautionary measure. As noted above, to be successful in a claim of service connection, there is generally three required elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a casual relationship between the present disability and the disease or injury incurred or aggravated during service. The Veteran has a current diagnosis of sensorineural hearing loss in the left ear due to a hearing acuity of 50 dB at the 3000Hz frequency level. This finding comports with VA's definition of disability resulting from hearing loss. 38 C.F.R. § 3.385. Thus, the first element of service connection is satisfied-current disability. Next, the Veteran must have endured an in-service injury or event. The Veteran asserts that he was exposed to excessive acoustic trauma from diesel engine generators, helicopters, explosions, and artillery as an electrical power specialist during active service. Furthermore, he provided lay evidence that he was not provided hearing protection to wear as a precautionary measure. The evidence of record supports a finding that excessive acoustic trauma was consistent with the Veteran's military occupational specialty as an electrical power specialist and with his tour of duty in the Republic of Vietnam, therefore his in-service injury is conceded. Thus, this case turns upon whether there is a nexus or relationship between the Veteran's left ear hearing loss disability and his military service. In efforts to address this question, the Veteran was afforded a VA audiology examination in May 2011. The left ear puretone threshold results from such examination were as follows: (in decibels) 500 Hz 1000Hz 2000Hz 3000Hz 4000Hz 25 25 15 50 35 The Veteran's Maryland CNC speech recognition score was 96 percent in the left ear. Following the examination of the Veteran and review of the claims file, the examiner provided a diagnosis of normal to moderate sensorineural hearing loss in the left ear and opined that the Veteran's left ear hearing loss disability was not caused by or a result of his military noise exposure. The examiner reasoned that hearing loss in the left ear was not considered to be disabling until approximately April 2000, when results comported with 38 C.F.R. § 3.385, which was too far removed from service separation to be the cause. The Veteran's service treatment records are negative for any complaints or treatment for hearing loss during active service. His pre-induction examination results indicate hearing at 0 decibels across all frequencies for the left ear except the 3000Hz level, which was not tested. His separation examination results for the left ear were as follows: (in decibels) 500 Hz 1000Hz 2000Hz 3000Hz 4000Hz 6000Hz 25 20 20 10 20 35 In support of his claim for service connection, the Veteran has offered lay evidence in a December 2010 written statement in which he stated that his entire military career was noise related, he never used hearing protection while in the military, and that his post-service employment in the gold mining industry requires him to wear hearing protection devices on a daily basis. Further, he stated that his hearing loss disability was documented and confirmed prior to his current employment. Additionally, the Veteran submitted private medical evidence from Dr. S in reference to a February 2012 audiological evaluation that he underwent. Dr. S completed a review of the Veteran's service treatment records. The results of a current audiological examination revealed that thresholds ranged from 15-50 decibels in the left ear. Word recognition scores were 100% correct in the left ear when presented at an amplified level. Dr. S classified the Veteran's disability as mild to moderate sensorineural hearing loss in the left ear. She opined that the Veteran's separation examination revealed a mild hearing loss in his left ear and when the amount of hazardous noise that the Veteran was exposed to with no protection is taken into consideration, it is as likely as not that his current hearing loss is a result of active duty noise exposure. Subsequently, the Veteran submitted an additional private medical opinion from Dr. S in October 2012. Dr. S stated that she reviewed the Veteran's medical records in their entirety and compared his pre-induction and separation examinations. She noted that the separation examination reveals a 10-35 decibel decrease in the left ear sensitivity when compared against the pre-induction examination results. Dr. S comments further that this is a significant change in hearing from before joining the military and separating from service, therefore, she again opined that the left ear hearing loss is more likely than not related to active duty noise exposure. The Board concludes that the lay statements of the Veteran and the private medical evidence from Dr. S are competent and credible. The Veteran is competent to report the loud noise that he was exposed to during his military tenure and the conditions of such, including the non-availability of hearing protection because he experienced and witnessed these things firsthand. Dr. S is a licensed audiologist skilled in the treatment and diagnosis of hearing disorders, she conducted a review of the Veteran's historical medical records, she conducted an audiological evaluation of the Veteran to determine his current left ear hearing acuity, and she also rendered an opinion regarding the etiology of his current left era hearing loss disability based upon analysis of his past and present audiometric test results and the lay testimony of the Veteran. As such, the private medical evidence from Dr. S is entitled to probative weight. However, the May 2011 VA opinion counters the Veteran's claim by taking into consideration the Veteran's hearing acuity at the time of enlistment and separation and the large lapse of time between separation from service and the recorded onset of the current left ear hearing loss disability. As such, it too is entitled to probative value. Thus, the medical evidence of record is conflicted on the ultimate question before the Board- i.e., whether service and a left ear hearing loss disability are related. Each opinion was offered by a licensed audiologist who documented a familiarity with the Veteran's current hearing capacity and his medical history. Although, the Veteran's left ear hearing acuity at separation did not meet VA requirements for a "disability," it is evident that there was a shift with respect to his hearing acuity during service. Furthermore, the Veteran gave credible statements regarding his post-service employment noise exposure and daily hearing protection worn while on the job. Accordingly, the Board finds that the medical evidence on the question before the Board is in equipoise. Essentially, the Veteran's left ear hearing loss disability cannot be satisfactorily disassociated from his active service. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and doubt is resolved in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). As such, the Board finds that service connection for a left ear hearing loss disability is warranted. The Board notes that when the Veteran submitted his VA Form 9 in October 2012, he indicated that he wished to appeal all issues listed in the previous August 2012 Statement of the Case. The issue addressed therein was entitlement to service connection for bilateral hearing loss. However, the Veteran also wrote a written statement on that same form indicating that he intended to appeal the December 2011 rating decision which denied service connection for a "left ear hearing loss" disability. Dealing with this same inconsistency, the court in Evans v. Shinseki, held that when an appellant makes an indication on a VA Form 9 that he wishes to appeal all issues on a Statement of the Case, then all issues are on appeal to the Board and the Board has waived its ability to dismiss any of those issues under 38 C.F.R. § 7105(d)(5). See Evans v. Shinseki, 25 Vet. App. 7 (2011). In light of the foregoing, the Board must consider the claim of service connection for right ear hearing loss as well. In doing so, the Board finds that at no time does the current evidence of record indicate that the Veteran's hearing acuity in his right ear at any of the relevant frequency thresholds was 40 decibels or greater; or that the thresholds for at least three of these frequencies are 26 decibels or greater; or that his speech recognition scores were less than 94 percent. Additionally, the most recent evidence submitted from Dr. S is not pertinent to whether the Veteran has a hearing loss disability in his right ear, it instead acknowledges and understanding that "his current hearing levels in his right ear do not meet the requirements to be considered a disability for VA purposes." Although this medical statement was received after the statement of the case issued, a supplemental statement of the case was not required to address this evidence with respect to right ear hearing loss as such evidence is not pertinent to the issue of whether the Veteran has a current right ear hearing loss disability. See 38 C.F.R. § 19.31(b) (2013). As the preponderance of the evidence is against finding that the Veteran has a hearing loss disability in his right ear pursuant to 38 C.F.R. § 3.385, service connection for hearing loss of the right ear is denied. ORDER Entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a right ear hearing loss disability is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs