Citation Nr: 1339909	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  11-02 979A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

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

2.  Entitlement to service connection for a hearing loss disorder of the left ear.  


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from December 1979 to August 1992.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado.  

In August 2013, the Veteran testified via videoconference before the undersigned Veterans Law Judge.  A transcript of this hearing has been added to the Veteran's electronic file in VA's paperless claims file processing system (Virtual VA).  

A review of Virtual VA claims reflects that it contains recent VA records and other documents not found within the physical claims folder.  These documents have been noted and reviewed by the Board.  


FINDINGS OF FACT

1.  The Veteran was exposed to loud noise (acoustic trauma) while in service.  

2.  The Veteran currently has hearing loss of the right ear to an extent recognized as a disability for VA purposes, and has reported a decline in hearing acuity since service.  

3.  The current hearing loss of the right ear was incurred in service.

4.  The Veteran does not have hearing loss of the left ear as defined by VA regulation.


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for hearing loss of the right ear are met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).  

2.  The criteria for service connection for left ear hearing loss are not met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013).  A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  

With respect to the Veteran's claims decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA.  In a February 2010 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal.  Additionally, this letter provided him with the general criteria for the assignment of an effective date and initial rating.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).  Finally, VCAA notice was provided the Veteran prior to the rating determination on appeal; therefore, no timing issue exists with regard to the notice provided.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, his lay contentions, and various private and VA treatment records.  

The Veteran was afforded a VA medical examination in April 2010.  The VA and private medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal, as it is competent medical evidence to decide the claims.  See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006) (a VA examination or opinion is necessary where there other criteria are met and there is "insufficient competent medical" evidence for VA to decide the claim).  The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received.  For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran.  

Next, as stated above, the Veteran presented hearing testimony before the undersigned VLJ at an August 2013 videoconference Board hearing.  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 fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  At the August 2013 Board hearing, the VLJ identified the issues on appeal.  The Veteran provided testimony relevant to the issues such as acoustic trauma during service, past and current symptoms, diagnoses, and current medical treatment.  During the course of the hearing, the VLJ posed several questions of the Veteran in order to ascertain whether there was additional evidence that may be outstanding that would help to substantiate the appeal.  After the Board hearing, the Veteran submitted additional evidence in support of the appeal accompanied by waiver.  In consideration of the foregoing, the Board finds that there has been compliance with the duties outlined at 38 C.F.R. § 3.103(c)(2).  

Finally, the Board observes that additional VA treatment records were added to the Virtual VA file in January 2013, subsequent to the most recent supplemental statement of the case, and consideration of this evidence by the agency of original jurisdiction has not been waived by the Veteran.  Remand for consideration of this evidence by the agency of original jurisdiction is not required, however, because these records indicate only that the Veteran visited the VA audiology clinic to get his hearing aid cleaned and adjusted, and that no clinical testing or additional diagnoses were rendered on those occasions.  Under such circumstances, remand for AOJ consideration is not required as the evidence is not pertinent to the appellant's claims.  See Vogan v. Shinseki, 24 Vet. App. 159, 167 (2010).  

Service Connection -Hearing Loss of the Right Ear

The Veteran seeks service connection for a hearing loss disorder of both ears, each of which will be considered in turn.  He asserts he has bilateral hearing loss as a result of his noise exposure during service, to include exposure to artillery fire.  

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, 1131; 38 C.F.R. § 3.303(a).  Service connection may also 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).    

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system (including sensorineural hearing loss), to a degree of 10 percent or more within one year from separation from service, such diseases may 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.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.

In this case, organic diseases of the nervous system are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) potentially applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Sensorineural hearing loss is considered by VA to be an organic disease of the nervous system and is thus subject to presumptive service connection under 38 CFR § 3.309(a).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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).  

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

After a review of all the evidence, the Board first finds that the Veteran was exposed to loud noise (acoustic trauma) while in service.  On the question of in-service injury or disease, the Board finds the Veteran credible regarding his reports of exposure to loud noise (acoustic trauma) to both ears in service.  Review of his service records confirms duty as a field artillery officer, and thus his assertions of exposure to artillery fire are consistent with the circumstances of his service.  The Veteran is competent to report noise exposure in service.  See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts).  Additionally, VA has already awarded the Veteran service connection for tinnitus based on exposure to acoustic trauma during service.  

The Board finds that the Veteran has a current bilateral hearing loss disability of the right ear as defined in 38 C.F.R. § 3.385.  On VA audiological examination in April 2010, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
30
35
55
LEFT
10
20
0
-5
15

The average pure tone threshold was 36dBs in the right and 8dBs in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent bilaterally.  A sensorineural hearing loss disability of the right ear, but not of the left, was diagnosed by the examiner.  

As the Veteran has a current hearing loss disability of the right ear recognized by VA, and in-service loud noise exposure is established, the next question is whether the current hearing loss disability is related to or caused by the in-service loud noise exposure.  The Board finds that the evidence is at least in equipoise as to whether the current whether the current hearing loss disability is related to or caused by the in-service loud noise exposure.  

As noted above, although the service separation audiological examination is of record and was negative for any hearing loss at that time, and there was no diagnosis of hearing loss of either ear in active service, the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required.  Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

The evidence of record demonstrates acoustic trauma in service, and the Veteran has reported some loss of hearing acuity at the time of service separation.  The Veteran has credibly stated that there were incidents in service when he was exposed to loud noise which affected his hearing.  He is both competent and credible to testify regarding such observable symptomatology.  The favorable evidence on the question of nexus of current hearing loss disability to service includes a May 2013 letter from a private audiologist that includes the opinion that the Veteran's in-service noise exposure seemed to have resulted in hearing loss.  This examiner noted that while the Veteran's hearing acuity at service separation was within normal limits, hearing loss can take years to develop.  

The evidence weighing against a finding of nexus to service includes an April 2010 VA audiological examiner's opinion that the Veteran's current hearing loss was not likely related to his exposure to noise in service.  The VA examiner reasoned that hearing loss had not been shown during service or at service separation.  The Board finds that the 2010 VA opinion in regard to the etiology of the Veteran's hearing loss is of limited probative value as the VA examiner made the factually inaccurate assumption that the Veteran's hearing loss was within normal limits during service and at service separation, without addressing the Veteran's credible and competent assertions of acoustic trauma in service and symptoms of hearing loss in service and since service.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual predicate is of no probative value).  Resolving reasonable doubt in the Veteran's favor on the question of relationship of current hearing loss disability to service, the Board finds that the current hearing loss of the right ear is related to service.  For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that, on the basis of acoustic trauma in service, reported chronic symptoms of hearing loss that were later diagnosed as such for VA purposes, and the favorable nexus opinion, the criteria for service connection for hearing loss of the right ear have been met.  38 U.S.C.A. § 5107(b). 




Service Connection -Hearing Loss of the Left Ear

The Veteran asserts hearing loss of the left ear as a result of acoustic trauma sustained during service.  The general criteria for the award of service connection for hearing loss have been noted above.  

In the present case, the weight of the lay and medical evidence is against finding that the Veteran suffers from a left ear hearing loss due to military noise exposure.  The results of the April 2010 VA audiological examination, listed above, do not meet the criteria for a left ear hearing impairment as defined by VA regulation.  

The Veteran also submitted the results of a private audiogram performed in January 2010.  This examination also showed no findings at 500, 1000, 2000, 3000, or 4000 Hertz of left ear hearing acuity of 40 decibels or greater or at least three of these frequencies are 26 or greater.  Additionally, the examiner's final assessment of the left ear was "normal."  

More recently, another private audiologist provided a May 2013 letter in which he described a recent test of the Veteran's hearing acuity.  While this examiner did not provide specific findings, he did state that the Veteran's hearing acuity of the left ear was "within normal limits."  

Upon review of the Veteran's post-service treatment records, the Board again notes that there are no findings of a left ear hearing disability.  

The Veteran has himself asserted that he has a current hearing loss disorder of the left ear.  The Board finds that the Veteran is competent to report such observable symptoms as a decline in hearing acuity, but is not competent to diagnosis a hearing loss disorder of the left ear, as this question is of the type that the courts have found to be beyond the competence of lay witnesses.  Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The diagnosis of a hearing loss disorder is based on medical evaluation and clinical testing by a competent expert, as any such disability is established by objective clinical findings.  

Some medical issues require specialized knowledge and training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  

As noted above, a VA audiologist and two private audiologists stated the Veteran's hearing acuity of the left ear is within normal limits, and objective audiograms from both VA and private sources all indicate hearing acuity which does not qualify as a disability by VA regulation.  The Veteran has not presented or identified evidence of the existence of a current diagnosis of left ear hearing loss.  

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).  The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  In this case, however, the overall evidence of record does not show that the Veteran currently suffers from a left ear hearing loss as defined by VA regulation; therefore, that holding is of no advantage.  Therefore, in consideration of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and service connection for left ear hearing loss is not warranted.  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 hearing loss of the right ear is granted.  

Service connection for hearing loss of the left ear is denied.  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs