Citation Nr: 1342071	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  08-26 588	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Acosta, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1970 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss because the competent medical failed to establish a relationship between in service noise exposure and the Veteran's current hearing loss.

The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case.

The Veteran had a hearing before the undersigned VLJ in May 2010.  A transcript of that hearing is of record. 

In September 2010, the Board remanded this matter to the RO/AMC for additional development.  This matter returned to the Board and was remanded again in July 2011 for compliance with the September 2010 Board directives.  This development now completed, the matter has properly been returned to the Board for appellate consideration.


FINDING OF FACT

Bilateral hearing loss was not shown in service or within one year of service discharge; and, the preponderance of the evidence fails to establish an etiological relationship between the Veteran's diagnosed hearing loss and his active service.



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CONCLUSION OF LAW

The criteria for service connection for hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  These 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).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in January 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in June 2008.  Nothing more was required.  

VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c).  The Veteran's service treatment records, Social Security records, private treatment records identified, and VA treatment records are associated with the claims file.  Neither the Veteran nor his representative have identified any treatment records aside from those that are already of record.  Thus, VA has made every reasonable effort to obtain all records identified and relevant to the Veteran's claim.

In May 2008, VA provided the Veteran with a medical examination and obtained a medical opinion addressing whether the Veteran's current hearing loss had an onset during or was caused by active service.  The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's hearing loss.  The examiner provided a sufficiently detailed description of these disabilities, and the examiner provided an analysis to support his opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  

In the September 2010 Remand, the Board directed the AMC to acquire hearing loss treatment records from the Evansville, Indiana Veterans Affairs Medical Center (VAMC) for the period between 1980 - 1989, private medical records from Mercy Hospital in Owensboro Kentucky from 1975 -1978 and any other hearing loss evidence the Veteran had received since he left active duty.  

In September 28, 2010 the AMC sent a request to the Evansville, Indiana VAMC including the Evansville Outpatient clinic and Marion, Illinois VAMC and received the Veteran's Audiological evaluation from May 2008 in response.  

The AMC also sent the Veteran a VA form 21-4142 (authorization for the release of treatment records) which was not returned by the Veteran although a signed VA form 21-4142 was already of record.  This prompted the Board to remand the claim to obtain a new VA from 21-4142, with particular attention to Mercy hospital records from 1975-1978, and acquire available treatment records from the Evansville, Indiana VAMC, and St. Louis, Missouri VAMC since May 2008.  

In compliance with the Board's directives, the AMC obtained another VA form 21-4142 from the Veteran which listed only the Mercy hospital records from 1975 - 1978.  In January 2012, the AMC requested these records from the Owensboro medical health system, which included Mercy, and was informed that no records could be found in this time frame.  In April 2012, the AMC informed the Veteran of the hospital negative response, and he indicated that he had no treatment records in his possession.  Treatment notes since May 2008 from Evansville VAMC and St. Louis VAMC that have been associated with the claims file.  

In view of the foregoing, there has been at least substantial compliance with the Board's Remand directives.  See Dyment v. West, 13 Vet App. 141, 146-47 (1999); Stegall v. West, 11, Vet. App. 268, 271 (1998).

Discussion of the Veteran's January 2010 Board hearing is finally necessary.  The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2).  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  They were met here.  Entitlement to service connection for hearing loss was identified as an issue at the hearing.  Information was elicited from the Veteran concerning of the nature, etiology, and onset of his hearing loss.  In particular, the Veteran discussed how he had outstanding medical records from Mercy Hospital in or around 1978.  This oversight triggered the Board's Remand to obtain these identified records.

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2013), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002). Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases, such as organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Sensorineural hearing loss, which is an organic disease of the nervous system, is a qualifying chronic disease.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case.

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).  

For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.

Lay evidence may also be competent, in some situations to establish a nexus between a current disability and service.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The courts have not explicitly laid out the circumstances in which lay evidence would be sufficient, but the case law suggest that a lay person could note the immediate consequences of an in-service injury.  See Trafter v. Shinseki¸ No. 10-3605, slip op. at 17 (Vet. App. Apr. 29, 2013) (veteran's report of depression following alleged failure to promptly treat him was evidence indicating a relationship between an injury and current disability). 

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Merits of the Claim

The Veteran contends his current bilateral hearing is related to his exposure to loud noises in service.  Specifically, he relates his hearing loss to his military occupation as an armor crewman.  The Veteran also alleges that his separation examination was inadequate as he was told by the separation examiner intimidated him to produce false results.  

While the Board recognizes the Veteran's contention about being intimidated in his separation examination, there is no evidence on the face of the separation examination to support this contention.  The "presumption of regularity" supports official acts of public officers.  In the absence of clear evidence to the contrary, the doctrine presumes that public officers have properly discharged their official duties.  United States v. Chemical Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926); In re Longardner & Assocs., Inc., 855 F.2d 455, 459 (7th Cir.1988) ("in this case, in which notice was properly addressed, stamped and mailed, there is a presumption that Bunn received it").  The doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary.  United States v. Roses, Inc., 706 F.2d 1563, 1567 (Fed.Cir.1983).  

The Board applies this presumption by analogy to the separation examiner who conducted the Veteran's separation examination in April 1972.  As such, the Veteran's contention alone that he was intimidated does not constitute clear and convincing evidence in light of the otherwise normal separation examination.  If such was the case, the Board fails to see why the Veteran did not state his difficulty with his hearing in his self-reporting medical history at separation.

A review of the record shows that the Veteran has been diagnosed as having bilateral hearing loss for VA purposes.  Such was established by VA examination in May 2008.  

As for the incurrence or aggravation of an injury or disease in service, the service treatment records are absent any evidence of complaints, treatment, or diagnosis of hearing loss.  The Veteran specifically denied having any ear trouble at discharge and made no reference to hearing loss.  His discharge examination showed that his hearing was normal for VA purposes.  38 C.F.R. 3.385 (2013).  Indeed, when comparing audiology testing between service enlistment and discharge, there is an actual improvement in the Veteran's overall hearing acuity particularly in the Veteran left ear at 500 Hz.  


The results of the Veteran's November pre-induction examination were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
/
0
LEFT
20
0
5
/
0

Conversely, the Veteran's January 1972 separation examination recorded audiometric results as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
/
5
LEFT
0
5
0
/
0

That said, the Veteran contends that he was exposed to noise as armor crewman.  The Veteran is competent to report exposure to noise.  He is also credible in this regard as the evidence shows the Veteran's occupation in service was that of armor crewman.  This is a military occupational specialty consistent with exposure to loud noises.  38 U.S.C.A. § 1154(a).  Thus, while an in-service injury is not necessarily established, the Board finds that the Veteran has presented sufficient evidence showing that he was exposed to noise in service.

Having determined that the Veteran had in-service noise exposure and has a current diagnosis of bilateral hearing loss, the final question before the Board is whether the Veteran's current hearing loss is related to his active service, to include noise exposure.  A relationship or "nexus" to service may in this case be established on either a direct basis or presumptive.  See 38 C.F.R. §§ 3.303, 3.309 (2013).  There is conflicting evidence on this point.

The VA examiner found that the Veteran's hearing loss was not related to his service.  After conducting an audiological evaluation, interviewing the Veteran, and reviewing the claims file, to include the service treatment records, the VA examiner remarked up on the fact in the whole of the Veteran's service there was only a notation that excessive cerumen (earwax) was removed in September 1970 and on occasion the Veteran reported dizziness.  Following these notation, the VA provided the following opinion as to the etiology of the Veteran's current hearing senorienural hearing loss diagnosis:

Pre-induction testing indicated normal hearing thresholds bilaterally 500-4000 Hz. Separation testing indicated normal thresholds bilaterally 500-400 Hz as well.  From those results, one can conclude the Veteran did not suffer any hearing loss during the time of his military service.  Due to normal hearing thresholds at the time of separation, it is the opinion of this examiner that it is less likely as not that the Veteran's hearing loss is related to his military service.

While not in and of itself outcome determinative, emphasis is placed on the fact that hearing loss was demonstrated in service or for many years later.  This fact was highlighted by the VA examiner wherein reporting the review of the whole of the Veteran's medical records the only evidence he was able to locate that would support the Veteran's claim was a notation of the Veteran's excessive cerumen and dizziness in service.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The VA examiner's notation to the claims file is evidence of a factually accurate review of the Veteran's history of hearing loss since separation.  His review also provides an additional basis for his rationale provided above.  The examiner also clearly considered his complaints of exposure to loud noise in service.  It was the Veteran's exposure to loud noises that served as a basis for the positive medical opinion relating the Veteran's tinnitus to his active service.  

Consideration has been given to the Veteran's lay assertion that his hearing loss is related to his in-service noise exposure.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, hearing disorders, including sensorineural hearing loss, fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Sensorineural hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that audiological testing and other specific findings are needed to properly assess and diagnose the disorder.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).

While the Veteran is competent to report diminished hearing acuity, there is no indication that the Veteran is competent to etiologically link this disorder to his active service, to include in-service noise exposure.  The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating hearing disabilities.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  This lay evidence does not constitute competent medical evidence and lacks probative value.

Notwithstanding his lack of competence in rendering a medical opinion in this matter, the Board refers to the 35 year time span between the Veteran's first report of hearing loss and the Veteran's separation from service.  The record shows that the Veteran first reported a hearing loss in his November 2007 claim for VA benefits while his records show that his separation from service occurred in April 1972.  The mere absence of medical records does not contradict a Veteran's statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  In this case, the Board finds that the Veteran did not experience any symptoms of the claimed hearing loss for at least 31 years after service.  This long period without problems weighs against the claim.

The Veteran's recent statements reporting a long history of symptoms of the claimed hearing loss are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his hearing loss.  See AZ v. Shinseki, 731 F.3d 1303, 1316-17 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).  Reference is made to the Veteran's 2001 application for SSDI benefits along with his claims for VA benefits in 2002.  Numerous medical complaints were registered in both instances, but there was no reference to hearing loss.  Based upon the language and context of the past record, the Board finds that the Veteran was reporting all the disabilities, medical conditions, and symptoms that he was experiencing at that time.  Therefore, his failure to report any complaints of hearing loss at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary.

The Board is equally puzzled by the lack of reference to hearing loss when the Veteran filed his claim for compensation in 2006.  If he had been experiencing hearing loss since service, as he now claims, it would have been logical for him to mention it in 2006.  Indeed, he has provided no explanation as to why he waited another year to mention his hearing loss.  He was clearly aware of the veterans' benefits system.  

As the negative VA opinion on the question of nexus carries the most probative weight of all of the opinions for consideration, the preponderance of the evidence weighs against a finding that the Veteran's current bilateral hearing loss and is related to the loud noise he was exposed to in service.  Service connection for bilateral hearing loss is not warranted on a direct basis. 

Further, as stated above there is no credible or competent evidence to support that the Veteran developed his hearing loss within a year after his service.  Therefore, the Veteran cannot prevail on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  Alternatively, under 38 C.F.R. § 3.303(b) (2013), a nexus to service will be established where there is continuity of symptomatology since service.  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).  For the reasons outlined above, e.g., the lack of reference to hearing loss in the earlier VA and SSA claims, the Board finds that due to the lack of credible evidence of symptoms until many years following service continuity of symptomology is not shown.

The Board considered the applicability of the benefit of the doubt doctrine.  However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). 


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
MICHEAL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs