Citation Nr: 1343329 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-14 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from October 1973 to September 1979 and again from September 1979 to June 1988. While the Veteran received an honorable discharge from his first period of service, the discharge for his second period of service was under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2011, the Board reopened the Veteran's claim of entitlement to service connection for bilateral hearing loss and remanded it for further development. The Board again remanded the matter in August 2013. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. As noted in the August 2013 Board remand, the issue of entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU) was raised by the Veteran's representative in a July 2013 Informal Hearing Presentation, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. FINDING OF FACT No current hearing loss disability was incurred in or aggravated by service, or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated in October 2006. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, Social Security Administration (SSA) records, and VA medical records have been obtained. Also, the Veteran was provided a VA examination of his claimed hearing loss in November 2011, and an addendum report in October 2013. This examination and report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The October 2013 report was by an examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Agency of Original Jurisdiction (AOJ) substantially complied with the Board's May 2011 and August 2013 remand instructions. Service treatment records and SSA records have been obtained and the Veteran has been provided an adequate VA examination and medical opinion that has answered the Board's questions. Thus, an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in July 2008 and September 2009 statements, the Veteran asserts that he has hearing loss due to in-service noise exposure from working around tank engines and generators, and loud and continuous noise without ear protection as a heavy vehicle mechanic. In a January 2004 statement, the Veteran asserted that in March 1984, while on active duty, he was found to have had a hearing condition. In a September 1993 administrative decision, the RO determined that the character of discharge for the Veteran's second period of service, from September 1979 to June 1988, was a bar to any VA benefits arising from that period, and no appeal of such determination is presently before the Board. Therefore, for purposes of service connection, the Board will only consider the Veteran's initial period of honorable service from October 1973 to September 1979. Service personnel records from the Veteran's period of active service from October 1973 to September 1979 reflect that he served as an armorer, track vehicle mechanic, and inventory clerk. Service treatment records reflect that on audiological evaluation for his entrance examination in July 1973, pure tone hearing threshold levels at 500, 1000, 2000, and 4000 Hertz, in decibels, were respectively 5, 15, 15, and 15 on the right; and 10, 15, 5, and 65 on the left. In June 1983, the Veteran was evaluated for a high frequency moderate to moderate severe sensorineural hearing loss. At that time, audiological evaluation revealed that the Veteran's hearing was essentially within normal limits in the right ear with the exception of a moderate loss at 6000 Hertz, and a severe sensorineural high frequency hearing loss in the left ear, with speech discrimination results excellent. Pure tone hearing threshold levels at 500, 1000, 2000, 3000, and 4000 Hertz, in decibels, were respectively 10, 10, 15, 20, and 25, on the right; and 10, 10, 15, 30, and 80 on the left. The Veteran was noted to have had a physical defect of bilateral high frequency sensorineural hearing loss, and his limitations were noted to be no exposure to high intensity noise in excess of 85 decibels or weapons firing without use of ear protection. On November 1984 audiometric testing, pure tone hearing threshold levels at 500, 1000, 2000, 3000, and 4000, in decibels, were respectively 10, 5, 5, 10, and 35 on the right; and 10, 5, 5, 20, and 85 on the left. On December 1984 audiometric testing, pure tone hearing threshold levels at 500, 1000, 2000, 3000, and 4000 Hertz, in decibels, were respectively 10, 5, 5, 10, and 30 on the right; and 0, 10, 5, 20, and 80 on the left. In September 1987, the Veteran was noted to have had a history of hearing problems and a P-3 hearing profile. At that time, pure tone hearing threshold levels at 500, 1000, 2000, 3000, and 4000 Hertz, in decibels, were respectively 15, 15, 15, 15, and 45 on the right; and 20, 10, 10, 35, and 75 on the left. However, responses to puretones were noted to have been unreliable and were improved on repetition. The assessment was nonorganic overlay of high frequency sensory neural hearing loss in both ears. A February 2001 VA audiology note reflects that the Veteran reported a longstanding hearing loss in both ears beginning in the military. He reported a history of noise exposure from tanks and prior summer jobs working with chain saws, as well as from his current work as a lube tech. He reported intermittent recreational exposure to chainsaws, power tools, and hunting rifles, with hearing protection. He also reported difficulty hearing television and co-workers. Pure tone hearing threshold levels at 500, 1000, 2000, 3000, and 4000 Hertz, in decibels, were respectively 5, 10, 10, 15, and 55 on the right; and 5, 10, 10, 35, and 85 on the left. The assessment was moderate high frequency sensorineural hearing loss of the right ear and mild to severe high frequency sensorineural hearing loss of the left ear. The report of a November 2011 VA examination reflects that the Veteran reported a military history of noise exposure due to rifle fire, generators, engines and tool noises as a wheel and track vehicle mechanic. He reported some occupational noise exposure as an auto and diesel mechanic. Pure tone hearing threshold levels at 500, 1000, 2000, 3000, and 4000 Hertz, in decibels, were respectively 15, 15, 15, 50, and 60 on the right; and 5, 15, 55, 70, and 85 on the left. The examiner stated that the Veteran's test results showed that his hearing loss had progressed significantly since the 2001 VA audiology evaluation, in the absence of military noise exposure, and that the typical course of noise-induced hearing loss was that its worst effects were immediately following exposure, resolving over time, and not beginning or progressing after separation from the noise. The examiner also stated that the configuration of the Veteran's hearing sloped steadily from 2000 to 8000 Hertz and was significantly asymmetric, and that this was not characteristic of noise induced hearing loss. In a November 2011 addendum, the VA examiner, after reviewing the Veteran's claims file, opined that, based on the record, the Veteran's hearing loss did not occur during and was not caused by his active duty military service. The examiner noted that the Veteran's September 1987 audiogram did not show significant change from the July 1973 audiogram at entry into service, and that the November 2011 results compared to the February 2001 results showed that the severity of the Veteran's hearing loss was worsening in the absence of military service. In October 2013, a different VA audiologist reviewed the record and provided an addendum report. The audiologist opined that the Veteran's hearing loss was less likely than not incurred in or caused by service, and that any pre-existing hearing loss was clearly and unmistakably not aggravated beyond its natural progression by service. The audiologist stated that the Veteran demonstrated a moderate high frequency hearing loss in his right ear and a moderately-severe high frequency sensorineural hearing loss in his left upon entrance into service in July 1973, that no hearing examination could be located around 1979, but that the hearing examination dated in June 1983 demonstrated no significant shift in hearing in the right ear. The audiologist noted that, although a shift in hearing was noted in the left at 4000 Hertz, the reliability of this finding was questionable based on the test findings in September 1987, as findings from that examination confirmed a non-organic overlay, with retest hearing thresholds similar to those of the 1973 examination. The audiologist therefore determined that military noise exposure did not exacerbate the hearing loss present at enlistment, and that any shift noted during the established timeframe was attributable to a non-organic overlay, as noted in 1987. She concluded that there was no reliable, demonstrated progression of hearing loss in either ear during military service, and that the progression noted in service was related to non-organic overlay and improved with retesting to levels consistent with prior findings. Considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claim must be denied. The record reflects a current bilateral hearing loss disability. However, even assuming that the Veteran was exposed to loud noise during his period of active service from October 1973 to September 1979, as he asserts, the weight of the evidence demonstrates that no hearing loss disability was incurred in or aggravated by service, or is otherwise related to that period of service. As noted in the prior remand, the 2011 opinion contained some factual inaccuracies, so additional opinion was sought. The most probative evidence on the question of whether any current hearing loss is related to the Veteran's period of service is the report of the October 2013 VA audiologist, who opined that the Veteran's hearing loss was not incurred in or aggravated beyond its natural progression by service. The audiologist had appropriate medical expertise and reviewed and discussed the record in detail, including service treatment records, post-service treatment records, and the November 2011 examination report. She also supported her opinions with a clear and persuasive rationale that any significant hearing shifts from the Veteran's hearing on entry into service in July 1973, beginning in June 1983, were of questionable reliability based on the September 1987 examination confirming a non-organic overlay, with retest hearing thresholds similar to those noted in 1973. She explained that there was no reliable, demonstrated progression of hearing loss in either ear during military service, and that the progression noted in service was related to non-organic overlay and improved with retesting to levels consistent with findings at entry. There is no competent and probative evidence, such as a medical opinion, contradicting the opinions of the October 2013 audiologist, or otherwise linking the Veteran's current hearing disability to his period of honorable service, and neither the Veteran nor his representative has identified any. The Board acknowledges that the Veteran's July 1973 entrance examination notes a hearing loss disability in the left ear, with the Veteran's pure tone hearing threshold level 65 decibels at 4000 Hertz. However, the record does not reflect that the Veteran's pre-existing left ear hearing loss underwent any increase in disability during his service from October 1973 to September 1979 beyond the natural progression of the disease. This is so according to the October 2013 VA audiologist, whose opinions the Board finds persuasive. As the record reflects that the Veteran's left ear hearing loss did not increase in severity during service, the presumption of aggravation does not apply to it. Moreover, even if the Board were to assume a worsening of left ear hearing acuity during that period, the Board would find that, given the October 2013 VA examiner's opinion, clear and unmistakable evidence demonstrates that the Veteran's left ear hearing loss did not undergo any permanent aggravation (worsening) during the period of service in question. Finally, service connection is not warranted under the provisions of 38 C.F.R. §§ 3.307, 3.309(a), or 3.303(b). No sensorineural hearing loss disability that did not pre-exist service was shown to have manifested during the Veteran's period of service from October 1973 to September 1979, and the earliest indication after such period of any hearing loss is the June 1983 examination report, more than a year after the Veteran's honorable service. Thus, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309(a) for chronic diseases are not applicable. Moreover, to the extent the Veteran asserts any continuity of hearing loss symptomatology since his period of service from October 1973 to September 1979, while the Veteran is competent to report hearing problems, the Board finds that the most probative evidence on the question of continuity of symptomatology is the October 2013 VA audiologist's report. This report indicates that there was no worsening of Veteran's hearing during that period of service, and the Board finds the report persuasive for the reasons given above. The Board therefore finds the audiologist's opinion more probative on the question of continuity of symptomatology from service than any assertions of the Veteran. Accordingly, service connection for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs