Citation Nr: 1418693 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 11-13 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1992 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which denied the claim in question. The Board has reviewed the Veteran's electronic record (Virtual VA and VBMS) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDING OF FACT The Veteran's bilateral hearing loss did not have onset in service or within one year of service and was not caused or permanently aggravated by the Veteran's active military 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, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), 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 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in an August 2010 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's bilateral hearing loss. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Sensorineural hearing loss is subject to service connection based upon a continuity of symptomatology as an "organic disease of the nervous system" under § 3.309(a). However the record indicates Veteran was first diagnosed with sensorineural hearing loss in 2010, some 15 years after service and thus, the § 3.303(b) presumption is not applicable here. Service connection may 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) (2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2013). 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, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran asserts that he has hearing loss as a result of exposure to heavy weapons fire while serving as a cannon crewmember while on active duty. The Veteran's DD-214 confirms that this was his military occupational specialty (MOS). Specifically, he reported noise exposure to artillery fire, gunfire, grenades, land mines, trucks, and rocket launchers. Review of his service treatment records (STRs) does not show any complaints of or treatment for hearing problems. The only audiological examination is contained in the Veteran's September 1992 entrance examination. During that evaluation his pure-tone thresholds, measured in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 5 0 0 0 0 25 Left 10 5 0 5 0 25 He underwent a VA audiological evaluation in May 2007. There, the Veteran reported suffering from hearing loss and tinnitus and attributed both conditions to his military service. He stated that he did wear hearing protection while in service, but the devices would sometimes fall out of his ears. The VA audiologist found the Veteran's hearing to be within normal limits. He also described the Veteran's word recognition score as excellent. Acoustic reflexes were present and the Veteran was negative for reflex decay. He had another VA audiological evaluation in April 2010. There, he reported first noticing any hearing loss 10 years prior. He also reported tinnitus, otalgia in both ears, aural fullness, and balance problems. On examination, his bilateral hearing was essentially within normal limits, with mild loss only at the 6000 Hz level in both ears. His word recognition ability was 88 percent in the right ear and 100 percent in the left. The examiner stated that his hearing loss since the May 2007 evaluation was stable, with the exception being a 25 dB decrease in hearing loss in the right ear at the 4000 Hz level. The Veteran underwent a VA compensation examination in November 2010. There, the examiner, an audiologist, indicated he reviewed the Veteran's claims file and summarized the Veteran's history of military, occupational and, and recreational noise exposure, specifically his time as an artillery man in service and working as a delivery truck driver for two to three years after service. The Veteran reported pressure, echo, and otalgia bilaterally. During the evaluation his pure-tone thresholds, measured in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 20 20 20 15 20 18.75 Left 25 25 20 35 30 27.5 He also registered scores of 64 percent in the right ear and 46 percent in the left on the Maryland CNC Word List speech recognition test. The examiner opined that the Veteran's current hearing loss and decreased word recognition ability was not due to or caused by noise exposure during his military service. His reasoning was based upon the fact that the Veteran had a normal audiological evaluation in May 2007, 12 years after his discharge. He then cited a report from the Institute of Medicine titled "Noise and Military Service Implications for Hearing Loss and Tinnitus" which stated that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. He had another VA compensation examination in December 2010. There, the examiner, an attending surgeon, reviewed the claims file and summarized his military and occupational noise exposure. He also summarized all of the above November 2010 audiological evaluations. He opined that the Veteran's hearing loss was less likely as not caused by or a result of acoustic noise exposure during his military service. His reasoning was in concurrence with the November 2010 examiner, as he pointed out that the Veteran's hearing was essentially normal in May 2007. He also cited the same study. He further reasoned that the Veteran's occupational noise exposure as a truck driver could have impacted his hearing. Based on the above evidence, entitlement to service connection for bilateral hearing loss must be denied. The Board has carefully considered the Veteran's lay statements that his hearing loss is due to acoustic trauma in service. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as the Veteran's hearing loss since separation. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran's service treatment records do not contain a separation examination. The Board finds that objective audiological testing showing normal hearing in May 2007-12 years after separation, has greater probative value than the Veteran's subjective complaints of impaired hearing. Furthermore, the Veteran stated at one point he first noticed hearing loss in 1999 or 2000, several years after service. While he later clarified that he still believed the onset was during service, there is no objective medical evidence to support this claim. Nonetheless, the Board has also considered whether the Veteran's current hearing loss is related to his in-service noise exposure, even if it did not have onset in service. However, both the VA audiologist and attending surgeon concluded that it is less likely than not that the Veteran's current hearing loss disability was related to his active military service. The opinions were reached after examinations of the Veteran and a review of the claims folder. They are also supported by a medically sound rationale, relying not solely on the absence of documented in-service hearing loss, but on the normal hearing examination in 2007. While the Veteran has argued that his current hearing loss is due to in-service acoustic trauma, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer an etiology opinion rather than provide a diagnosis, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has bilateral hearing loss due to his acoustic trauma in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. In sum, the competent evidence does not establish that the Veteran's currently-diagnosed hearing loss had its onset in service, within one year following separation, or is etiologically related to service. Approximately 15 years after separation, the Veteran was first diagnosed with any type of hearing loss. This significant lapse of time is highly probative evidence against the Veteran's claim of a nexus between a current hearing loss disability and active military service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding that a significant lapse in time between service and post- service medical treatment may be considered in the analysis of a service connection claim). For all the above reasons, entitlement to service connection for bilateral hearing loss is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs