Citation Nr: 1341467	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  07-10 663	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for a right ear hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel



INTRODUCTION

This appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.  In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  

The Veteran served on active duty from September 1975 to September 1979.  His military occupational specialty was as an infantryman and parachutist.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA).  

This case was previously before the Board in June 2013 when it was remanded for additional development.  During the appeal process, service connection was granted for a left ear hearing loss, and a noncompensable rating was assigned.  That issue is no longer on appeal.  Service connection was denied for the right ear hearing loss in a September 2013 supplemental statement of the case, and the appeal as to that issue continues.  


FINDING OF FACT

The competent evidence of record shows that the Veteran's right ear hearing loss began many years after service and was not caused by any incident of service.  


CONCLUSION OF LAW

The Veteran does not have a right ear hearing loss that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1101, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.  

VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim.  In this regard, April 2006 and December 2010 letters to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and VA for obtaining that evidence.  Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence he was expected to provide.  

The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the Veteran was provided with notice of this information in the April 2006 letter mentioned above.  

VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012).  The information and evidence associated with the claims file consist of a service entrance examination report, VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements from the Veteran and his representative.  

In September 2013, VA examined the Veteran to determine the nature and etiology of any hearing loss disability found to be present.  The VA examination report shows that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  Therefore, the Board concludes that the VA examination is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

In developing the record, VA made extensive efforts to obtain the Veteran's service treatment records (STRs).  However, in December 2011, the RO made a formal finding that the Veteran's STRs were unavailable; and there is no reason to believe that further efforts to obtain such evidence would be any more productive.  Indeed, further development in this regard would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran.  Soyini v. Derwinski, 1 Vet. App. 540, 545 (1991).  Accordingly, such development is not warranted.  

In view of the unavailability of the Veteran's STRs, VA informed the Veteran of alternative forms of evidence which he could submit to support his claim; for example, statements from people who knew him in service and knew of his disability when he was on active duty, employment and insurance examination reports, post service treatment records, pharmacy prescription records, and records from the Social Security Administration.  See, e.g., the April 2006 VCAA letter.  

In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal.  He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication.  Accordingly, the Board will proceed to the merits of the appeal.

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).   

Analysis

The Veteran contends that he has a right ear hearing loss disability, primarily as a result of military acoustic trauma associated with the sounds of gunfire, explosions, and machinery.  Therefore, he maintains that his current right ear hearing loss disability is the result of service and that service connection is, therefore, warranted.  However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim.  Accordingly, the appeal will be denied.   

Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2012). Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  See, e.g., Cuevas v. Principi, 3 Vet. App. 542 (1992).  

Additionally, service connection for certain organic diseases of the nervous system, such as sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307, 3.309 (2012).  

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  

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, as distinguished from merely isolated findings or a diagnosis including the word chronic.  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b) (2012).  

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  

The foregoing law and regulations notwithstanding, service connection may 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) (2012).  

The Board acknowledges that the Veteran is competent to give testimony about what he experienced before, during, and after service.  For example, he is competent to report that he had difficulty hearing after an explosion in service and that he has had difficulty hearing since that time.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  As a layman, however, he is not qualified to render opinions which require medical expertise, such as the diagnosis of his symptoms or cause of a particular disability.  38 C.F.R. § 3.159(a) (2012).  Therefore, his opinion is not dispositive.  38 C.F.R. § 3.159(a) (2012).  

Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).  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.  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.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain evidence over other evidence.  Schoolman v. West, 12 Vet. App. 307, 310-11.  The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another.  Evans v. West, 12 Vet. App. 22, 31 (1998).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).  In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993).  

In this case, because the Veteran's STRs are unavailable (other than an entrance exam report), the Board will review his post STRs to determine whether he has a right ear hearing loss disability for VA purposes, and, if so, whether it is at least as likely as not related to service.  

It is reasonable to expect that if the Veteran was experiencing hearing difficulty as a result of events in service, he would have sought treatment for such a disorder following his separation from active duty.  In this regard, it is noted that the Veteran initially filed a claim for hearing loss in 2006.  VA audiometric examination in May 2006 showed that the Veteran did in fact have hearing loss disability in the right ear for VA purposes as defined in 38 C.F.R. § 3.385 (2012).  In November 2006, however, he was not shown to have right ear hearing loss disability for VA purposes.  As a result of inconsistent 2006 results, and the fact that the Veteran reported that his hearing impairment had continued to increase in severity since that time, the Board remanded the case in January 2013 for additional audiology evaluation.  

Additional VA audiology examination was conducted in February 2013, but this testing was found to be inadequate to address the medical questions at hand.  The Board remanded the case again in June 2013, and additional VA audiology examination was conducted in September 2013.  

On the authorized audiological evaluation in September 2013, pure tone thresholds, in decibels in the right ear, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
25
30
35
45







The speech discrimination score was 98 percent.  A sensorineural hearing loss was diagnosed.  

The examiner, who reviewed the claims file, opined that the right ear hearing loss was less likely as not caused by or a result of the Veteran's military service.  For rationale she noted that although a separation hearing evaluation was not available in the STRs, his original claim for service connection in 2006 revealed hearing sensitivity within normal limits in the right ear, almost identical to his 1975 enlistment hearing test.  It was further pointed out that a "flat" pure tone configuration was not consistent with noise exposure.  

In opining that the Veteran's left ear hearing loss was likely related to service, the audiologist further explained that hearing sensitivity in that ear when he filed his claim in 2006 revealed a "noise notch" configuration (a mild 35 db loss at 3000 Hz) which was consistent with weapons fire.  She stated that a reduction in the left ear hearing with no change in the right ear hearing was common when firing rifles due to the position of the ears in relation to the rifle, as the left ear was exposed to the rifle blast, but the right ear was protected by the head and was turned away from the blast.  

VA records show a sensorineural hearing loss in the right ear since 2006.  However, those records are negative for any findings of a nexus to service.  In fact, as summarized above, a VA audiologist in 2013 expressly found no such nexus in the right ear, although acknowledging such a nexus for the left ear.  She provided a detailed rationale regarding her opinions as summarized above.  

While the Veteran claims that current hearing loss is of service origin, no formal complaints of such are of record until many years after service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).

In short, the preponderance of the evidence of record shows that the Veteran's right ear hearing disability was first manifested many years after service and is unrelated thereto.  Moreover, a sensorineural right ear hearing loss is not shown to a compensable degree within one year of service discharge so as to permit a grant of service connection on a presumptive basis.  Therefore, the criteria for service connection are not met.  Accordingly, service connection for a right ear hearing loss disability is not warranted, and the appeal is denied.  

In arriving at this decision, the Board has considered the doctrine of reasonable doubt.  However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim.  In this case, the preponderance of the evidence is against the Veteran's claim.  Therefore, the doctrine of reasonable doubt is not applicable.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012).  


ORDER

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



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs