Citation Nr: 1342018	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  12-15 509	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran served on active duty from July 1992 to December 1995.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  

In September 2012, the Veteran testified before the undersigned at hearing conducted at the RO.  A transcript (Tr.) of the proceeding is of record.  


FINDING OF FACT

The Veteran's bilateral hearing loss is unrelated to any aspect of her active military service, including any noise exposure incurred therein.


CONCLUSION OF LAW

Service connection for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.  2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 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 C.F.R. § 3.159(b)(1) (2013).  VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The VCAA notice 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.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).  

In this case, VCAA notice was provided through a letter issued in October 2009, prior to the initial adjudication of the Veteran's hearing loss claim.  The letter specifically advised the Veteran of the evidence needed to substantiate her claim, as well as her responsibilities, and those of VA, for obtaining such evidence.  In addition, that letter described in detail how VA assigns a disability rating and an effective date following the grant of service connection.  As such, that letter not only comported with the Pelegrini notice provisions but also satisfied the heightened VCAA requirements set forth in Dingess.  Accordingly, the Board finds that VA has fully met its duty to notify the Veteran under 38 C.F.R. § 3.159(b).

The Board also finds that VA has satisfied its duty to assist the Veteran pursuant to 38 C.F.R. § 3.159(c)(4).  The agency of original jurisdiction (AOJ) has obtained copies of the Veteran's service treatment records and relevant VA medical records.  Significantly, the Veteran has not identified, and her claims file has not otherwise revealed, the existence of any pertinent records that have yet to be obtained. 

In addition to undertaking the above records development, the AOJ has assisted the Veteran by affording her a VA examination in March 2010.  Despite disagreeing with the findings of the March 2010 VA examiner, the Veteran has not alleged that the underlying examination was inadequate to decide her claim.  Nor has the record otherwise suggested that this was the case.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  Accordingly, the Board considers it unnecessary to remand for an additional VA examination or medical opinion in this instance.  

The Board likewise considers it unnecessary to remand for an additional hearing as the Veteran has already had the opportunity to testify before the undersigned in support of her service-connection claim.  See 38 C.F.R. § 20.700(a) (2013).  The transcript of the Veteran's September 2012 hearing reflects that the undersigned set forth the issue on appeal at the start of the proceeding, then focused on the elements necessary to substantiate the claim and sought to identify any further development that was required.  See Board Hearing Tr. at 2, 8-10.  These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the 38 C.F.R. § 3.103(c)(2) provisions apply to a hearing before the Board).  Notably, the Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by not fully explaining the issue on appeal or by neglecting to suggest the submission of relevant evidence that may have been overlooked.  Moreover, there is no indication that the Veteran was otherwise denied due process during her hearing.  

For the foregoing reasons, the Board finds that VA's duties to notify and assist have been satisfied in this case and, thus, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Merits of the Claim for Service Connection

The Veteran contends that her bilateral hearing loss was caused by in-service noise exposure and that service connection is therefore warranted for that disability.

Service connection may be granted for a disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  Establishing entitlement requires 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.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

In this case, the first and second elements of Hickson have been clearly been satisfied.  The report of a March 2010 VA audiological examination confirms that the Veteran has disabling bilateral hearing loss pursuant to 38 C.F.R. § 3.385.  In addition, she has testified, and her service records confirm, that her military occupational specialty (aviation hydraulics mechanic) entailed significant flight-line noise exposure.  See Board Hearing Tr. at 4-5.  Accordingly, the Veteran's claim turns on whether a nexus exists between her currently diagnosed hearing loss and her in-service noise exposure. 

With respect to this third and final Hickson element, there is only one medical opinion of record, which is unfavorable to the Veteran's claim.  Specifically, the audiologist who conducted the Veteran's March 2010 VA examination has opined that her bilateral sensorineural hearing loss is less likely than not related to her military noise exposure.  As a rationale for the opinion, the VA examiner noted that the Veteran's auditory thresholds did not change significantly between her entrance and separation examinations and that her "right ear results at 2 and 6kHz and left ear results at 3 and 6 kHz show[ed] improvement at exit."  The examiner further noted that, while the Veteran consistently used hearing protection in the Navy and has continued to do so in her post-service employment, her current hearing loss "does not follow a typical pattern for noise-induced hearing loss, i.e., there is no high frequency slope or noise notch present."

The Board considers the above examiner's opinion highly probative as it is predicated upon a thorough clinical examination and evidentiary review and is supported by a detailed rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion is dependent upon whether the opining clinician was fully informed of the pertinent factual premises, i.e., history, of the case).  Moreover, that opinion is uncontroverted by any other competent evidence of record.

In this regard, the Board acknowledges that the Veteran has submitted documentation from United States Navy and Army Web sites, which suggest a general correlation between military noise exposure and permanent hearing loss.  See Statistical Analysis of Hearing Loss Among Navy Personnel; see also Release of the Army Transformation Final Environmental Impact Statement, Appendix H-1: Noise Background Information.  However, while such general findings can provide important support when combined with an opinion of a medical professional, no such opinion addressing the specific facts of this case has been presented.  See generally Mattern v. West, 12 Vet. App. 222, 228 (1999); (noting that the pertinent medical literature, in combination with a medical nexus opinion, is considered probative evidence in support of a claim for service connection).

Clearly, the Veteran herself is of the opinion that military noise exposure is responsible for her current hearing loss.  As a layperson, she is competent to opine as to matters that lie within the realm of common medical knowledge.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Such matters, however, do not include the etiology of her hearing loss, which requires clinical expertise.  See Jandreau v Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (noting that "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").  Accordingly, the Board finds the evidence submitted by the Veteran, including her own lay assertions, insufficient to establish that her bilateral hearing loss is etiologically related to her active military service when the examining VA audiologist has concluded otherwise.  

There is also no evidence that the Veteran has sensorineural hearing loss that manifested to a compensable degree within a year of her separation, or has persisted continuously since that time, such that an in-service nexus may be rebuttably presumed, including on the basis of continuity of symptomatology under 38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In summary, the Board finds that the final Hickson requirement has not been met in this case under any applicable theory of entitlement.  Thus, while mindful of the benefit-of-the-doubt doctrine, the Board finds that rule is not for application and that the appeal must therefore be denied.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2013).


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
DONNIE R. HACHEY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs