Citation Nr: 1340397	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  12-15 576	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for sensorineural hearing loss of the left ear.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

P. M. Johnson, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Marine Corps from April 1967 to June 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, MN.  Initially, the Veteran appealed the issues of service connection for bilateral tinnitus and left ear hearing loss.  However, a December 2012 RO decision provided a grant for bilateral tinnitus representing a full grant of the benefit sought.  

Additionally, in March 2013, the Veteran filed a Notice of Disagreement regarding a February 2013 RO decision that resulted in a decreased rating for prostate cancer residuals.  A statement of the case was issued in March of 2013, but no VA Form 9 or any document in support of this claim has subsequently been filed.  Therefore, this claim has not been perfected and will not be adjudicated at this time.  The Veteran has until February 25, 2014 to perfect this appeal, through a VA Form 9 or some other subsequent indication of the Veteran's intention to appeal the decision, before this claim becomes final.            

The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed.


FINDINGS OF FACT

1. The Veteran was exposed to aircraft engine noise during service and occupational and recreational noise after service.

2. The Veteran did not have impaired hearing of the left ear for VA purposes at the time of his separation from service.

3. Hearing loss of the left ear discovered long after service is not attributable to the Veteran's noise exposure during service.




CONCLUSION OF LAW

Left ear hearing loss was not incurred in service or a result of noise exposure during service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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)) defined VA's duty to assist a claimant in the development of a claim for VA benefits.  VA regulations for the implementation of the VCAA are codified, as amended, at 38 C.F.R. §§ 3.102, 3.159, and 3.326(a) (2013).

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what information or evidence, if any, the claimant is to provide; and what information or evidence VA will attempt to obtain.  38 C.F.R. § 3.159(b).  The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the 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).  Insufficiency in the timing or content of VCAA notice is harmless, however, 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).

The RO provided the Veteran with VCAA notice in a January 2012 letter, issued before the March 2012 rating decision that the Veteran appealed.  In that letter, the RO addressed the information and evidence necessary to substantiate claims for service connection, addressed who was to provide the evidence, and informed the Veteran how VA assigns disability ratings and effective dates.

The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, the Veteran's informal hearing presentation, and reports from VA medical evaluations.  A VA audiology examination that the Veteran had in March 2012 adequately addressed questions regarding the etiology of the Veteran's hearing loss.

With regard to the issues that the Board is deciding at this time, the Veteran was notified and aware of the evidence needed to substantiate the claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran has actively participated in the claims process by providing evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.  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 have caused injury to the Veteran's interests.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless, and does not prohibit consideration of those issues on the merits.  See Conway, 353 F.3d at 1374; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Service Connection for Left Ear Hearing Loss

The Veteran reports that he was exposed to noise during service.  He contends that his current left ear hearing loss resulted from this in-service noise exposure.  All evidence of record has been reviewed and considered, and the relevant evidence is summarized below.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  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.  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

If an injury or disease was alleged to have occurred or been 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); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  That is, while the statute provides a presumption that a particular injury occurred in service, it is still necessary for the veteran to demonstrate the presence of a current disability and to establish a nexus between the in-service event and the disability.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).

The Veteran is currently seeking service connection for hearing loss of the left ear that he believes is the result of his military service.  The Veteran served courageously and honorably in the Republic of Vietnam during a time of war.  His DD-214 reflects he received awards for his combat service, including the Distinguished Flying Cross.  Therefore, the Veteran is entitled to the combat presumption discussed above.

The Board notes that bilateral "sensorineural hearing loss" was diagnosed during a March 2012 audiological evaluation, and that organic diseases of the nervous system are listed under 38 C.F.R. § 3.309(a), and are typically considered "chronic."  See 38 C.F.R. § 3.307(d).   However, no sensorineural hearing loss of the left ear has been alleged to have occurred during service or was found during service.  As discussed further below, discharge audiograms were found to be within normal limits and no hearing loss for VA purposes was present at separation.  Further, when comparing the enlistment and discharge audiograms there were no significant threshold shifts for the left ear.  While any allegation of left ear hearing loss during combat would be presumed to have occurred (possibly subject to rebuttal due to the normal separation evaluation), the Veteran has not alleged that hearing loss occurred during combat but that he suffered noise exposure, which has been conceded.  Thus, while sensorineural hearing loss has been diagnosed post-service, it is necessary to establish a link between any current left ear hearing loss and an event or incident of active service in order for service connection to be granted.  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

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. 

For VA disability benefits purposes, impaired hearing is 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.  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).  Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Standards Organization (ISO) units to facilitate comparison of results. 

In Hensley, the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service."  The Court explained that:
[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.  5 Vet. App. at 159-160.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

During the Veteran's service, he performed duties as an aircraft pilot.  He has stated that both of his ears were exposed to acoustic trauma, including jet engines.  The Veteran also reported civilian noise exposure, including: lawn mowers and golf carts required for three summers working in golf course maintenance, post-service employment in road construction with occasional exposure to heavy equipment, and reported hunting duck, goose, and pheasant.    

Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966.  However, in July 1966 VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967.  The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units.  Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units.  Essentially, that means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz.  Therefore, the January 1967 entrance examination of the Veteran shows measurement of the Veteran's hearing, in decibels, as follows (converted to ISO/ANSI standards):





HERTZ



500
1000
2000
3000
4000

RIGHT 
15
15
10
25
30

LEFT
5
15
10
25
20


Another hearing test was done in June 1967 to assess duty involving control of aircraft, and that showed measurement of the Veteran's hearing, in decibels, as follows (converted to ISO/ANSI standards):





HERTZ



500
1000
2000
3000
4000

RIGHT 
15
10
10
25
5

LEFT
20
5
15
25
25



Finally, the June 1971 separation examination shows measurement of the Veteran's hearing by the ISO/ANSI standards.  The exam shows pure tone thresholds as follows:





HERTZ



500
1000
2000
3000
4000

RIGHT
5
5
10
35
25

LEFT
5
10
5
15
20


The claims file does not contain any measurement of the Veteran's hearing during the year following his separation from service, and the Veteran has not reported that his hearing was tested during that year.

In a March 2012 VA audiological examination, the examiner reported having reviewed the Veteran's claims file.  The Veteran did not report that his hearing loss impacts ordinary conditions of daily life, including the ability to work.  Upon audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000

RIGHT
10
10
20
40
40

LEFT
10
10
35
50
45


Speech recognition, performed with the Maryland CNC word list, was determined to be 98 percent in the right ear and 96 percent in the left ear.

The examiner reported sensorineural hearing loss (in the frequency range of 500-4000 Hz) bilaterally, and sensorineural hearing loss in the frequency range of 6000 Hz or higher for the right ear only.  The examiner provided the opinion that only the Veteran's right ear hearing loss was caused by or a result of his military service.  The examiner noted that,
There was a significant shift at 3000 Hz when comparing his 1964 PCLA hearing test (converted to ISO standards) to his separation hearing test (ISO standards).  There were no significant decreased thresholds for the left ear.  Therefore, it is less likely as not that the left ear hearing loss is due to military noise exposure.

In April 2012, the examiner provided an addendum stating that there is no nexus between the Veteran's left ear hearing loss and military noise exposure.  Specifically, noting that there was no literature that the examiner was aware of to support delayed onset hearing loss years after a specific set of noise exposure.  Additionally, the examiner stated that "if one is removed from the source of military noise exposure and further hearing loss occurs; it is due to further noise exposures."

In August 2012, a different VA audiologist reviewed the Veteran's claims file, including the audiograms of January 1967 and June 1971.  The examiner noted that the enlistment audiogram was recorded in ASA standards and was within normal limits.  "When converting thresholds... for the left ear to ISO/ANSI standards, the standards remain within normal limits by VA rating purposes."  Discharge audiograms were reported to be within normal limits and when comparing the enlistment and discharge audiograms there were no significant threshold shifts.  

The examiner then reported that, "Current science indicates that the understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely."  The examiner also noted that individuals with previous noise-induced hearing loss are neither more nor less susceptible to subsequent noise-induced hearing loss than individuals without such pre-existing hearing loss.  Based upon the evidence in the current claim, the examiner concluded that the Veteran's left ear hearing loss is less likely caused by or a result of military noise exposure.         

In his Notice of Disagreement of March 2012, the Veteran argued that if his right ear hearing loss is service-connected and his left ear received the same in-service exposure, then his left ear hearing loss should also be service-connected.  The Veteran suggests that his conceded noise exposure from his combat and other military service initiated the development of his left ear hearing loss.  However, while the Veteran is competent to report what comes to him through his senses, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his current disability occurring several decades after service.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Therefore, a medical opinion is needed to establish a nexus between the Veteran's combat injury and his current left ear hearing disability.

Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's currently diagnosed left ear hearing loss disability and his period of active service.  Both VA audiologists concluded that it is less likely than not that relationship exists between the Veteran's current left ear hearing loss and his military service, and there is no competent evidence of record that provides a nexus to service.  The opinions are well-reasoned with full a rationale associated with each conclusion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295.  The Board must decide the case based on the competent medical opinions and cannot substitute its own judgment.  As a result, the Board finds that the evidence of record is against the claim for service connection. 

In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for left ear hearing loss.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, at 54. 


ORDER

Service connection for left ear hearing loss is denied.

____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs