Citation Nr: 1343141	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  11-33 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty in the US Marine Corps from January 1974 to January 1979, and the US Navy from December 1990 to April 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

The Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge in July 2013.  A transcript of that hearing has been reviewed and associated with the claims file.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1. The weight of the probative evidence does not show that the Veteran has a current diagnosis of right ear hearing loss as defined by VA regulation.

2. The weight of the evidence of record does not establish that the current left ear hearing loss disability is related to the in-service exposure or that it manifested to a compensable degree for VA purposes within one year following separation from service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.      38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103(A) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. 

Prior to initial adjudication of the Veteran's claim, in July 2010, the Veteran submitted a signed statement acknowledging that the VA notified him of the evidence or information needed to substantiate his claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. This notice letter indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining the evidence.  The July 2010 notice letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the claims file.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded a VA examination in September 2010 and the results of which have been included in the claims file for review.  This VA examination involved review of the claims file and thorough examinations of the Veteran.  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims.

In December 2012, the Board remanded this matter for further development.  Specifically, the Board instructed the RO schedule a Board hearing as requested by the Veteran in an October 2012 correspondence.

As such, in July 2013 the Veteran testified at a videoconference hearing over which the undersigned Veterans Law Judge (VLJ) presided.  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the Board hearing, the VLJ clarified the issue on appeal and inquired as to the etiology of the Veteran's asserted symptoms.  The Veteran was offered an opportunity to ask the undersigned questions regarding his claim.  The Board, therefore, concludes that it has fulfilled its duty under Bryant.

The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  As the Veteran was afforded a hearing, the Board finds there has been substantial compliance with its December 2012 remand directives as to the claim decided herein.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted arguments and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II. The Merits of the Claim

The Veteran contends that he currently suffers from bilateral hearing loss as a result of acoustic trauma he sustained in active duty service. 

Governing Law and Regulations 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  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.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

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 (2013).

The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

To establish service connection, the Veteran is not obliged to show that his hearing loss was present during active military service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis

The Veteran alleged in his substantive appeal that he did not have hearing loss when he entered the Marine Corps in 1974 but did have hearing loss when he was discharged from in 1979.  

According to the evidence of record, the Veteran underwent several audiometric testing during his military service.  However, the service treatment records during the Veteran's period of active service from January 1974 to January 1979 does not indicate any complaints, treatment, or diagnosis for bilateral hearing loss.  Additionally, the audiometric testing conducted during that period of active service does not indicate hearing loss as defined by the VA.  Furthermore, the service treatment records during the Veteran's period of active service from December 1990 to April 1991 are also absent of any complaints, treatment, or diagnosis for bilateral hearing loss.  



The pure tone thresholds, in decibels, were as follows: 

December 1978 (at separation from active duty)



HERTZ



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

May 1990 (annual flight physical)



HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
5
25
LEFT
5
10
5
15
15

May 1991 (annual flight physical)



HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
20
LEFT
10
5
5
25
25

According to the Veteran's military personnel records, his MOS was a aircraft commander. 

The Veteran was afforded a VA audiologic examination in September 2010 where he reported military noise exposure in the course of performing his duties as a pilot.  He stated he did use hearing protection during his military service and denied pre-military and recreational noise exposure.  On examination, the pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
15
25
LEFT
15
20
25
35
50

Speech audiometry revealed speech recognition ability of 100 percent, bilaterally.  The Veteran was diagnosed with sensorineural hearing loss, normal to severe, in the left ear.  The Veteran's right ear was considered not disabling.  Upon physical examination, a review of the evidence of record, and the Veteran's lay statements, the examiner concluded the hearing loss was less likely as not (less than 50/50 probability) caused by or a result of military noise exposure.  The examiner's rationale was that:

[A] review of the service medical records available in the [claims file] revealed hearing within normal limits except for a mild hearing loss at 6000 Hz in the left ear and hearing within normal limits in the right ear on entrance exam.  Audiologic results from separation exam showed hearing within normal limits with no significant change in hearing, bilaterally.  [The Veteran] served several years in the military reserves as a pilot while simultaneously working as a commercial airline pilot.  [The Veteran] reported he was called to active duty for combat deployment in 1990 to Desert Storm.  Review of the record does not show any evidence of standard threshold shift subsequent to military combat, deployment bilaterally.  Reported case history of occupational noise exposure with use of hearing protection as a commercial airline pilot. 

At the July 2013 Board hearing, the Veteran cited to an internet article pertaining to noise induced hearing loss.  The Veteran cited to statistics and several etiological causes of hearing loss.  The Veteran also referenced to his in-service treatment records from May 1973 to 1991 citing to puretone thresholds, in decibels, ranging from 30 to 50.  The Veteran testified that beginning in 1980 he was in the reserves but employed as a pilot.  In 1990, he was called to service in Desert Storm flying combat missions for three months.  The Veteran stated he was not receiving treatment at the VA or by a private doctor for his hearing loss.  

Upon review of the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has bilateral hearing loss that was incurred in or is otherwise related to military service.

The Board acknowledges the Veteran's report of being exposed to acoustic trauma in service (i.e. serving as a pilot) to be credible given his consistent statements of noise exposure and his MOS.  In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded.  38 U.S.C.A. § 1154(a). Service incurrence of an acoustic trauma has been demonstrated.

In this case, the Veteran has been diagnosed with sensorineural hearing loss only in the left ear.  As the Veteran's right ear has not been diagnosed with hearing loss, the claim pertaining to the right ear must be denied. 

In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal.  See McClain v. Nicholson, 21 Vet. App. 319  (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  While the Board recognizes the Veteran's sincere belief in his right ear claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a right ear disability (to include a hearing loss disability) caused or aggravated by military service during any period of his appeal.  Indeed, as noted above, according to the September 2010 VA audiograms the hearing acuity of the right ear was within normal limits. 

Regarding the Veteran's left ear, the Board acknowledges that he has been diagnosed with sensorineural hearing loss.  However, the medical evidence of record as a whole supports the proposition that there is no etiological relationship between the origin and/or severity of his left ear hearing loss and his military service.  

Here, the examiner's determination is consistent with the evidence of record.  The in-service treatment records revealed no complaint, treatment, or diagnosis of left ear hearing loss.  In addition, none of the post-service treatment records offer an opinion that the Veteran's left ear hearing loss is related to his military service.  The Board, therefore, finds that the September 2010 VA examiner provided a negative nexus with regard to the Veteran's claim for service connection.

The Board acknowledges the Veteran's testimony that the puretone thresholds, in decibels, ranged from 30 to 50 from May 1973 to 1991.  However, the Board finds that these measurements pertain to decibels at 6000 Hertz.  As noted above, hearing loss at these frequencies does not constitute a disability for VA purposes.  See 38 C.F.R. § 3.385.

The only evidence of record in support of the Veteran's claim consists of his own lay statements.  The Board acknowledges the Veteran contentions that his left ear hearing loss is related to his military service.  The Veteran is considered competent to report the observable manifestations of his claimed disability.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service).  His assertions that he experiences symptoms are also credible.  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, given the complexity of the particular question of etiology and the fact that a nexus opinion may not be rendered based on personal observation, the Board finds that the Veteran is not competent to opine on the etiology of his left ear hearing loss.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer).

Furthermore, although the Veteran has stated his symptoms started during service there is no evidence that his left ear hearing loss was disabling to a compensable degree within one year of separation from active duty.  In fact, the evidence as discussed above demonstrates that the Veteran was earliest diagnosis for left ear hearing loss was in 2010; nearly twenty years after his discharge from the military.  See Maxson v. Gober, 230 F.3d 1330, 1333  (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also 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 the claimed condition].

Finally, the Board also acknowledges that the Veteran submitted a medical treatise from the Internet regarding noise induced hearing loss.  However, this evidence only provided general information that is not specific to the facts of the Veteran's case.  Thus, such documents are entitled to little probative weight as they do not address the specific relationship of the Veteran's left ear hearing loss and his military service.

As such, after weighing and balancing the evidence of record, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's bilateral hearing loss is related to any in-service disease, event, or injury.  See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310.  Unfortunately, although the Veteran has established that he has been diagnosed with left ear hearing loss, the evidence of record does not establish that this condition is the result of a disease or injury in active duty service.  Accordingly, the Board finds that the criteria for service connection for a bilateral hearing loss are not met and the Veteran's claim must be denied.  

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  See 38 U.S.C.A. § 5107(b).  However, the doctrine of reasonable doubt is not for application concerning these claims as the weight of the evidence is against them.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of this claim must be denied.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs