Citation Nr: 1340904	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  03-36 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

The Veteran appellant had active service in the United States Army from August 1972 to August 1974.  This case originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that, in part, denied the appellant's claim of entitlement to service connection for left ear hearing loss.  The Board most recently remanded the case for additional development in November 2012; the case has now been returned to the Board for appellate review.

The Board notes that, while the case was in remand status, service connection for an anxiety disorder was granted, with a 70 percent evaluation effective from September 29, 2009.  The rating also included a grant of a total rating for individual unemployability (TDIU), effective January 15, 2010.

The appellant's September 2010 VA Form 9 included a request for a Board hearing. However, in October 2010, he indicated that he would rather have a hearing before a Decision Review Officer (DRO). Thereafter, the Veteran withdrew that hearing request in a July 2012 written statement.  Therefore, Board adjudication of the current appeal may go forward without a hearing.  See 38 C.F.R. §§ 20.703, 20.704 (2011).

In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the Veteran's claim.  Virtual VA does currently contain evidence not included in the paper claims file - namely VA treatment (CAPRI) records dated in 2012 and 2013.


FINDINGS OF FACT

1.  The appellant's profound left ear sensorineural hearing loss preexisted his August 1972 entry into active duty.

2.  Clear and unmistakable evidence shows that the appellant's current profound left ear hearing loss was not made permanently worse during his service from August 1972 to August 1974.


CONCLUSION OF LAW

Service connection for the left ear sensorineural hearing loss is not warranted, to include by way of aggravation.  38 U.S.C.A. §§ 1131, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant contends that he is entitled to service connection for left ear hearing loss.  He maintains that, although left ear hearing loss was demonstrated prior to his entry into active service, that left ear hearing loss was made worse by his exposure to acoustic trauma during his military service.

I.  Duty to Notify and Assist

VA's duty to notify and assist claimants in substantiating their claims for VA benefits is codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In February 2002, prior to the promulgation of the September 2002 rating action, the RO sent the appellant a letter informing him of the types of evidence needed to substantiate his hearing loss service connection claim and VA's duty to assist him in substantiating his service connection claim.  The letter informed him that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, records from other Federal agencies, etc.  He was advised, under 38 C.F.R. § 3.159(b)(1), that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim.  In addition, he was supplied with the text of 38 C.F.R. § 3.159 and 38 C.F.R. § 3.303 in the November 2003 SOC and he was provided with the text of 38 C.F.R. § 3.306 in the April 2004 SSOC.

The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist.  In addition, the September 2002 rating decision, the November 2003 SOC and the various SSOCs explained the basis for the RO's actions.  The appellant was also provided with opportunities to submit more evidence.  

All relevant evidence identified by the appellant relative to his hearing loss service connection claim has been obtained and associated with the claims file, and neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his hearing loss service connection claim, and to respond to VA notices.

In addition, to whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the appellant in proceeding with the present decision.  A March 2006 letter from the RO contained the information required by Dingess. 

Moreover, the appellant has been represented by a state government veterans' service organization throughout the duration of the appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error.").  In sum, the Board finds that any deficiency in the notice to the appellant or the timing of the notice is harmless error.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, relevant service medical treatment records have been associated with the claims file.  Social Security Administration records and VA outpatient medical treatment records have also been associated with the claims file.  The appellant had a VA audiometric examination in November 2008, and a medical opinion was obtained in October 2013.

A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The November 2008 examination was conducted by an audiologist.  The examiner was able to assess and record the condition of the appellant's auditory acuity as an audiometric examination was accomplished.  The October 2013 medical opinion report reflects review of the appellant's service medical records and his post-service treatment records.  The opinion reflected consideration of the appellant's contentions concerning his claimed left ear hearing loss and the clinical evidence of record.  

The Board finds that the October 2013 medical opinion is sufficiently detailed with recorded history and clinical findings relating to the appellant's claimed hearing loss.  The associated report reflects that the VA physician considered the entire record, noted the history of the claimed left ear hearing loss, addressed relevant evidence, and provided a rationale for his opinions.  Therefore, the October 2013 medical opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).  Further, the VA opinion addressed the applicable criteria.  As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra.  

Furthermore, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159.  He did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained.  He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations.  Thus, it appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file.

A remand from the Board or from the United States Court of Appeals for Veterans Claims (Court) confers upon a veteran the right to substantial, but not strict, compliance with that order.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  In this case, pursuant to the November 2012 Board remand, VA treatment records were added to the claims file and a VA medical opinion was obtained in October 2013.  Therefore, substantial compliance has been achieved.

II.  The Merits of the Claim

Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service.  38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a), 3.304.

A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence.  Determinations relative to service connection will be based on review of the entire evidence of record.  38 C.F.R. § 3.303(a).  

In order to establish service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); McClain v. Nicholson, 21 Vet. App. 319 (2007).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Also, service connection may be granted for disability resulting from the aggravation during service of a pre-existing injury or disease.  38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a), 3.304.  

A veteran is presumed in sound condition except for defects noted when examined and accepted for service.  38 U.S.C.A. § 1132.  Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.304(b); VAOPGCPREC 3-2003.  A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).  Once the presumption of soundness at entry has been rebutted, aggravation may not be conceded unless the pre-existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306.  See VAOPGCPREC 3-2003 (July 16, 2003).

In rendering a decision on appeal, the Board must 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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  

The appellant submitted his claim for service connection in October 2001.  In an accompanying letter, he stated that he did not pass the entrance physical for the naval Academy because he failed an ear test.  

Review of the appellant's service medical treatment records reveals that he underwent audiometric testing at the time of his entrance examination in August 1972.  The pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
N/A
10
LEFT
70
70
55
N/A
65

The appellant underwent a service separation examination on June 7, 1974.  Audiometric testing was accomplished at this time.  The pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
N/A
10
LEFT
75
75
60
N/A
65

The appellant was subsequently referred for an ENT consultation which was accomplished on June 26, 1974.  Audiometric testing was accomplished at that time.  The pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
N/A
N/A
N/A
N/A
LEFT
70
65
60
70
70

Post-service, the appellant underwent an audiological assessment in a VA facility in July 2003.  The appellant provided a copy of his Army enlistment examination and it was noted that he had had a unilateral loss in the left ear.  The audiologist stated that a similar loss was present at the time of the appellant's discharge from the Army.  The audiologist further stated that the appellant's left ear hearing loss was profound.  The November 2008 VA audiometric examination also yielded a finding that the appellant's left ear hearing loss was profound.

A VA physician reviewed the appellant's claims file and medical records in October 2013.  The doctor stated that the appellant entered service with a profound hearing loss in the left ear as documented by the audiometer results of August 1972.  His separation physical documented the hearing loss to remain essentially unchanged in June 1974, and these results were confirmed on June 26, 1974.  The physician noted the appellant's noise exposure in service, but stated that the hearing in the right ear was not impacted by said exposure as the right ear hearing was normal.  Therefore, the doctor concluded that it was obvious and manifest that the left ear hearing loss did not increase in severity in service beyond the normal progression of hearing loss.  In addition, the physician stated that the appellant's current profound left ear sensorineural hearing loss was consistent with the natural progression of his hearing disorder over the last 40 years since service.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C.A. § 1111 (presumption of sound condition).  

"[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." Wagner, 370 at 1096; see also 38 U.S.C.A. § 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, 25 Vet. App. at 234; 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  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.  Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C.A. § 1153.

To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report.  38 C.F.R. § 3.304(b); see also 38 U.S.C.A. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994).  History of pre-service existence of a disease does not constitute a notation of such condition.  See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs).  However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided.  See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet.").

Here, the Board finds that the appellant's left ear hearing loss was noted upon entry into service.  As described above, this hearing loss was documented by the results of audiometric testing conducted in August 1972, and the appellant was placed on an H2 profile.  ('PULHES' profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  Odiorne v. Principi, 3 Vet. App. 456 (1992)).  Based upon this report, the Board finds that because the left ear hearing loss was diagnosed on the Veteran's entrance examination, that the condition was "noted" upon entry into service.  Consequently, to the extent the Veteran seeks compensation for disability resulting from his left ear hearing loss, the burden is on him to demonstrate an increase in that left ear hearing loss during service, which would serve to establish the presumption of aggravation.  See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Horn, 25 Vet. App. at 235 n. 6.

The Board has considered the Veteran's statements to the effect that his left ear hearing loss worsened in service.  Laypersons are competent to describe symptoms and other observations of which they have first-hand knowledge.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  In this case, however, the Board finds that the objective data recorded in the audiological evaluations directly address the criteria by which hearing loss is evaluated.  Such objective data clearly show that he had preexisting hearing loss with no measured worsening during service.  Moreover, the July 2003 audiological assessment indicated that the hearing loss at entry was similar to the hearing loss at separation and the October 2013 VA medical opinion states that, based on the audiometric evidence of record, there was no worsening or aggravation of the left ear hearing loss during service.  As such, the Board finds this audiometric evidence to be more probative of the severity of the Veteran's left ear hearing loss than his subjective perception of his hearing loss. 

Based on the foregoing, the Board concludes that that the Veteran's left ear hearing loss was not aggravated by service.  38 C.F.R. § 3.306(b) (aggravation may not be conceded where the disability underwent no increase in severity during service).  Accordingly, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for left ear hearing loss.  

Because the preponderance of the evidence is against the left ear hearing loss service connection claim, the benefit of the doubt doctrine does not apply.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).  Accordingly, the Board concludes that service connection for left ear hearing loss is not warranted.


ORDER

Service connection for left ear hearing loss is denied.




____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs