Citation Nr: 1414073 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 09-37 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for right ear hearing loss disability REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from March 1984 to March 1988. He had an additional period of active service from March 1988 to June 1989. The Veteran is not eligible for Department of Veterans Affairs (VA) benefits for the latter period of active service because it was found to be under dishonorable conditions in a June 1991 VA decision by the Regional Office (RO) in St. Petersburg, Florida. This case comes before the Board of Veterans' Appeals (Board) on an appeal of a May 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified in June 2010 before a Veterans Law Judge at a Travel Board hearing at the RO in Phoenix; a transcript is of record. In September 2012 the Veteran was notified that the Veterans Law Judge who held his hearing in 2010 had since retired from the Board, and the letter offered the Veteran an opportunity to testify at another hearing. He did not respond. This claim was previously before the Board in May 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include obtaining a medical opinion. The requested development has been completed by the RO and with no further action necessary to comply with the Board's remand directives; the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran had right ear hearing loss noted at his entry to service, and there is no competent evidence indicating it was aggravated by service. CONCLUSION OF LAW Right ear hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1131(West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends he suffers from a right ear hearing loss disability due to acoustic trauma suffered during active service. His claim was initially denied by the RO as a pre-existing disability that had not been incurred or caused by service. See May 2008 Rating Decision. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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). Reviewing the evidence of record, the service treatment records show that on an April 1983 medical history report the Veteran checked both "yes" and "don't know" as to whether he had ever had hearing loss. On an examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 40 35 55 LEFT 10 5 5 5 40 When the Veteran's hearing was rechecked in April 1983, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 30 30 40 LEFT 5 5 5 0 40 The Veteran's enlistment report of medical examination from April 1983 lists under summary of defects and diagnoses hearing loss NDQ (not disqualifying). For VA purposes, the Veteran's pre-existing hearing disability was noted at enlistment. Therefore, since hearing loss in the right ear was clearly shown medically upon entry in 1983, the presumption of soundness does not apply. The veteran cannot bring a claim for service connection for right ear hearing loss, but may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). In that case, section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing disability or disease will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). If the presumption of aggravation under section 1153 arises, the burden then shifts to VA to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. March 1984 testing indicated, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 35 40 40 LEFT 5 5 5 0 70 April 1985 testing indicated, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 30 35 50 LEFT 5 5 5 0 65 On a March 1988 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 35 30 60 LEFT 5 5 15 5 70 The Veteran indicated on a June 1988 medical history report that he had had hearing loss. Subsequent to filing his claim for service connection, the Veteran underwent a VA audio examination in May 2008. The examiner reviewed the Veteran's claims file and noted that when the Veteran was 10 years old a tumor was removed from his ear. The enlistment examination showed pre-existing bilateral hearing loss, which was mild to moderate in the right ear and severe in high frequencies in the left ear. The Veteran's separation examination in the left ear was essentially unchanged from enlistment, and there was some progression of hearing loss in the right ear. At the VA examination, the Veteran reported a history of noise exposure to aircraft during his active service. He denied post-service noise exposure, and reported having hearing loss secondary to a right mastoidectomy at age 10. He said that his hearing loss interfered with interpersonal communication and with understanding the television. He reported that his tinnitus interfered with his hearing. The authorized audiological, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 65 75 90 LEFT 25 25 20 35 80 The examiner diagnosed the Veteran with right ear severe, mixed hearing loss and left ear high frequency sensorineural hearing loss. The examiner opined that based on the Veteran's reported history of pre-existing hearing loss in the right ear, right middle ear surgery in childhood, and the mixed nature of the hearing loss, it appears that the hearing loss is not due to military noise exposure. However, this examination was inconclusive and the Veteran underwent another hearing examination in August 2011. The authorized audiological, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 50 70 80 LEFT 20 25 15 35 80 The examiner diagnosed the Veteran with right ear mixed hearing loss and left ear sensorineural hearing loss. However, this examiner did not provide an opinion on aggravation of a pre-existing condition and the Board requested an addendum opinion in May 2011. An addendum opinion was provided in October 2011. The examiner opined that it was at least as likely as not that the Veteran's right ear hearing loss was not aggravated by in-service noise exposure, because it appears that the Veteran's hearing loss was a pre-existing condition and there was no significant threshold shift during the Veteran's period of active service. The examiner further opined that the mixed nature of the Veteran's hearing loss is not the type which is usually associated with noise exposure. The Veteran testified at the June 2010 hearing that he wore hearing protection during his active service but that many times it would fall off when he leaned over. In addition, there were times when he did not wear it. He further testified that he had not had noise exposure since service. The Board acknowledges that the Veteran himself has claimed his current right ear hearing loss arises from his active service. However, the Board notes that as a layman, the Veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Again, since the right ear hearing loss was shown at entry, it is the Veteran's burden to establish it was aggravated by service. He has not done so. There is no competent evidence indicating the condition was aggravated by service, and, in fact, the medical opinions conclusively state it was not. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for right ear hearing loss, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify was satisfied prior to the initial rating decision through a July 2007 letter (and then later a July 2011 letter), that fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate his service connection claims and of the appellant's and VA's respective duties for obtaining evidence. The Veteran's claim was subsequently readjudicated, most recently in a September 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also concludes VA's duty to assist has been satisfied. Additionally, the Veteran testified at a hearing before the Board in June 2010. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life and his occupation. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). VA's duty to assist the Veteran in obtaining records has been satisfied. Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. The Veteran has been afforded VA examination in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). This VA examination was adequate for the purposes of evaluating the Veteran's disability, as it involved a review of his pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate description of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to service connection for right ear hearing loss is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs