Citation Nr: 1342345 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-14 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hearing loss disability in the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active duty service from March 1963 to March 1966, with additional service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2013, the Board remanded this claim for additional development and adjudicative action. The case has now been returned to the Board for appellate action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT A hearing loss disability in the left ear was not present until more than one year following the Veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW A hearing loss disability in the left ear was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters sent by the RO in May 2009. The record also reflects that service records and post-military medical records have been obtained. The Veteran submitted multiple written statements discussing his contentions. A VA examination was provided in March 2012. As directed in the October 2013 Remand, the originating agency obtained an additional medical opinion in November 2013. Thus, the originating agency has substantially complied with the October 2013 remand directives. See D'Aires v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, the Board finds that the VA examination reports are adequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests organic disease 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, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that his left ear hearing loss is due to in-service noise exposure. He claims that he was exposed to noise from gunfire, simulated explosion demonstrations, and industrial noise during his active duty service. The Veteran reports that he has experienced decreased hearing ever since service. A review of the Veteran's service treatment records does not reveal any reported symptoms or diagnosis related to a left ear hearing disability. These records include a January 1966 separation report of medical history wherein the Veteran denied ever having any ear, nose or throat trouble, or any running ears. The associated January 1966 separation report of medical examination shows that the clinical examination revealed that the Veteran's ears were normal. Prior to November 1967, service departments used standards set forth by the American Standards Association (ASA) to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses standards set by the Internal Standards Organization (ISO)-American National Standards Institute (ANSI). For purposes of comparison between the service audiometric data and more recent VA audiometric data, the table below shows the ASA measurements recorded in service, with the comparable ISO-ANSI measurements in adjacent parentheses. At the time of the Veteran's January 1966 separation physical examination, pure tone thresholds, in decibels, were noted as follows: HERTZ 500 1000 2000 4000 LEFT 10 (25) 10 (20) 10 (20) 5 (10) On a March 1978 report of medical history completed in connection with the Veteran's enlistment into the Army Reserve, the Veteran denied ever having hearing loss or any ear, nose or throat trouble. He underwent an enlistment physical in March 1978, at which time his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 15 0 5 5 On an April 1982 report of medical history completed during the Veteran's reservist service, he again denied ever having hearing loss or any ear, nose or throat trouble. The April 1982 report of medical examination reveals that his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 10 10 10 A November 2009 VA treatment record reflects that an audiological assessment revealed mild to moderate high frequency hearing loss in the left ear. The audiometric test results were not reported. A March 2012 VA audiological examination report shows the Veteran's report of experiencing in-service noise exposure. At that time, he stated that he first noticed his hearing loss following his military service. The audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 25 20 25 45 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. The examiner indicated that the claims file was reviewed, and she noted that the Veteran's January 1966 separation audiogram showed normal hearing. (The Board notes that there is no indication that the March 2012 examiner converted the Veteran's January 1966 audiometric results from ASA standards to ISO-ANSI standards when she reached this determination.) The examiner opined that it is less likely than not that the Veteran's hearing loss was due to in-service noise exposure. In November 2013, an additional VA examiner reviewed the record on appeal in order to provide an etiological opinion that considered the conversion of the Veteran's January 1966 audiometric test results from ASA standards to ISO-ANSI standards. Following her review of the record, the examiner opined that it was less likely than not that the Veteran's left ear hearing loss was caused by military noise exposure. She stated that even after the ASA to ISO-ANSI conversion of the Veteran's 1966 pure tone thresholds, there was no left ear hearing loss at the time of the Veteran's January 1966 separation physical. The examiner also highlighted that the January 1966 separation report of medical history documented the Veteran's report that he was in "the best health" and that he only had trouble with his leg. She also noted that the Veteran's subsequent hearing tests in March 1978 and April 1982 showed normal hearing. The examiner stated that current understanding of the anatomy and physiology of the auditory system is consistent with hearing loss from noise occurring at that time of the exposure and not subsequently. Given that the Veteran did not have hearing loss during service and there was no evidence that hearing loss manifested within a year of his separation, the examiner concluded that it was less likely than not that the Veteran's left ear hearing loss was caused by military noise exposure or any other incidents during service. Given the foregoing, service connection for hearing loss in the left ear is not warranted. The records of treatment from the Veteran's active duty service fail to reflect that he had hearing loss of the left ear. The Veteran himself also denied experiencing hearing loss or ear trouble in March 1978, nearly twelve years after his separation from active duty. Audiometric findings performed at that time also reflected that he did not have a left ear hearing loss disability. See 38 C.F.R. § 3.385. Audiometric findings were again within normal limits upon examination in April 1982, and the Veteran denied ever having hearing loss or ear trouble in his report of medical history associated with the examination. There is no evidence of left ear hearing loss, for VA purposes, until 2012 - over forty years after separation from active duty. In the present case, the lack of complaints of hearing loss of the left ear, despite multiple examinations in which he was provided the opportunity to report hearing loss, along with the audiometric finds at the time of and soon after separation, indicate that the Veteran's left ear hearing loss did not develop until more than a year after his discharge from service. Furthermore, the preponderance of the medical evidence weighs against the claim for service connection. In this regard, the medical evidence of record assessing the relationship between the Veteran's in-service noise exposure and left ear hearing loss is limited to the March 2012 and November 2013 VA medical opinions. Based on a review of the Veteran's in-service and post-service medical records, along with consideration of the results of the clinical examination and the Veteran's competent lay statements, the examiners both provided opinions against the claim for service connection for a left ear hearing loss disability. The Board finds the VA medical opinions to be highly probative and compelling evidence against the Veteran's claim that his current left ear hearing loss had its onset or is related to his military service. There is no competent medical evidence of record to rebut the opinions against the claim or otherwise diminish their probative weight. The evidence of record linking the Veteran's existing hearing loss to his active duty service is limited to the Veteran's own allegations and testimony. Although the Veteran is competent to state that he experienced hearing loss in and since service, the Board accords more weight to the audiological testing conducted during service as to the presence of hearing loss at that time and to the history provided by the Veteran in service and more proximate to service than the self-serving history that he has provided for compensation purposes many years following his discharge from service. Additionally, while he contends that his hearing loss is related to noise exposure during his active service, there is no indication that the Veteran has the requisite expertise to render a competent opinion concerning the etiology of his hearing loss. In any event, his lay opinion concerning this matter requiring medical expertise is clearly outweighed by the medical opinions against the claim. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's left ear hearing loss disability. In reaching this decision, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable to this claim. ORDER Service connection for hearing loss disability in the left ear is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs