Citation Nr: 1341978	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  10-34 741	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Samuelson, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1965 to August 1965, and from February 1968 until September 1969.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In November 2011, the Veteran testified at a travel board hearing before the undersigned Veteran's Law Judge (VLJ).  A transcript of the hearing has been associated with the claims file.


FINDING OF FACT

The Veteran did not have a hearing loss disability for VA purposes on separation from service or within one year of separation, and a probative medical opinion fails to link his current bilateral hearing loss to service.


CONCLUSION OF LAW

Criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist 

VA must provide claimants with notice and assistance in substantiating claims for benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper notice 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The notice requirements apply to all five elements of a service connection claim, including 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits.  38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that VA has satisfied its duty to notify.  Specifically, an October 2009 letter, sent prior to the initial unfavorable decision issued in November 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claims and establish a disability rating and an effective date.  The same letter advised the Veteran of his and VA's respective responsibilities in obtaining the evidence and information.

Relevant to the duty to assist, the Veteran's service treatment records, VA examination report, and private treatment records have been obtained and  considered.  

The Veteran was afforded a VA examination in November 2009 in conjunction with the claim on appeal.  The Board finds that the examination is adequate in order to evaluate the Veteran's bilateral hearing loss as it was performed by an audiologist and includes a review of the Veteran's history, an audiogram, and the Maryland CNC test.  Moreover, the examiner provided clear conclusions with supporting data, and a reasoned medical explanation connecting the two.  Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Further, the examiner addressed the functional effects of the Veteran's hearing loss.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection for hearing loss claim.  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) (2010) requires that the VLJ who chairs 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.   

Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for service connection.  The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims.  This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board/DRO hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim(s), and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  

The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II. Service Connection Claim

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. However, this presumption is inapplicable in this case because the most probative evidence of record does not show that the Veteran manifested high frequency sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of service. 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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.

The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service.  Hensley v. Brown, 5 Vet. App. at 159.

The Veteran was afforded a VA examination in November 2009.  At the VA examination, the Veteran reported that his hearing loss existed since 1967-68.  The Veteran reported that his condition occurred from military noise exposure as a mechanic in the Army.  He stated that in the 1960's the Army did not issue hearing protection.  At his November 2011 travel board hearing, the Veteran testified that his hearing loss began around 1970.  See transcript, pp. 11-12. 

The Board notes that the Veteran is competent to report a history of in-service noise exposure.  See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  Moreover, his assertions are considered credible as they are consistent with his documented military occupational specialty of wheeled auto repairman.  Thus, the Veteran was exposed to noise consistent with his duties.  

However, the Veteran's service treatment records include no complaints, diagnosis, or treatment of hearing loss.  In his Report of Medical History dated August 1969, the Veteran checked the box indicating that he did not have, and had never had, hearing loss.  The audiogram conducted at the Veteran's separation examination in August 1969 showed auditory thresholds in all tested frequencies at 0 decibels in both ears.  

At the November 2009 VA examination, the audiogram showed auditory thresholds in the frequencies of 3000 and 4000 Hertz above 40 decibels in both ears.  Speech recognition, performed with the Maryland CNC word list was 88 percent in the right ear and 80 percent in the left ear.  Therefore, in November 2009, the Veteran had hearing loss for VA purposes.  As such, the remaining inquiry is whether the Veteran's current hearing loss is related to service.

The VA examiner determined it is less likely than not that the Veteran's hearing loss is due to in-service noise exposure due to normal separation hearing evaluation and history of occupational noise exposure that is known to cause hearing loss.  The Board finds that the November 2009 VA examiner's opinion is competent based on the audiologist's medical expertise, and it is credible based on his duty to provide truthful opinions.  It is likewise highly probative based on his medical reasoning, internal consistency, and consistency with the evidence of record.

The Board has also considered the January 2010 and February 2010 private audiological examinations of record, and finds that because the former contains insufficient rationale and the latter contains no nexus opinion, they are entitled to less probative value than the November 2009 VA examiner's opinion.  Specifically, the January 2010 private audiologist, M.W., opined that the Veteran's bilateral hearing loss is "at least as likely as not related to his military experience as a Tank and Track Vehicle Mechanic the rationale being that exposure to excessive noise from tanks, track vehicles, diesel engines, 105 mm cannons, M-60 machine guns, M-14 rifles and other weapons fire result in acoustic trauma."  M.W. did not provide adequate rationale for his opinion, as he neither acknowledged nor accounted for the Veteran's contemporaneous Reports of Medical History in which he denied ever having experienced hearing loss or his separation examination in which the audiogram showed no hearing loss.  

The Board has also considered the Veteran's lay statements.  The Veteran is competent to report that he was exposed to loud noise as a mechanic in the Army and that he has had difficulty hearing since that time.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).

However, the Board finds that the Veteran's assertions that he has had ongoing hearing difficulty since service are not credible.  The Board notes that a lack of contemporaneous medical evidence does not necessarily render lay assertions non-credible.  See Buchanan v. Nicholson, 7 Vet. App. 498, 511 (1998), aff'd per curium, 78 F. 3d 604 (Fed. Cir. 1996).  Here, however, the Veteran's assertions are contradicted by the more probative contemporaneous evidence in his Report of Medical History dated August 1969 in which he checked the box indicating that he did not have, and had never had, hearing loss.  Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history).  Moreover, the record reflects that the Veteran first reported hearing loss in his claim for service connection in 2009, 40 years after service.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service).

Given the absence of any credible reports reflecting that the Veteran has experienced hearing loss continuously since his exposure to noise in service, the Board finds that there is no factual basis upon which to conclude any current chronic hearing loss is linked to service.  While service connection is possible for hearing loss which first met VA's definition of disability after service, it is not warranted in this case because the most probative evidence of record shows that the Veteran's current hearing loss is less likely than not related to service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Accordingly, reasonable doubt does not apply, and the Veteran's appeal of this issue is denied. 


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs