Citation Nr: 1419018 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 09-35 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to February 1961, and from February to December 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. On his substantive appeal, the Veteran requested a hearing before a Board member. He was initially scheduled for a Board hearing to be held in February 2011. He was notified of the February 2011 hearing, and in January 2011 he requested that his hearing be rescheduled due to "trouble with his knee." The hearing was rescheduled and the Veteran was notified his new hearing would take place in April 2011. Two weeks before the April 2011 hearing, the Veteran called the RO and reported that he would not be able to attend the hearing because his shoulder was sore and it would be painful to drive to the hearing. He was then scheduled for a Board hearing in July 2011; however, again he called the RO and stated he could not attend the hearing because he had recently undergone shoulder surgery and it would be painful to drive to the hearing. He was instructed on how to formally cancel a hearing and told of his other options. He did not formally cancel his July 2011 hearing, and did not appear for the hearing. Multiple attempts were made to afford the Veteran a hearing, and he failed to appear for the most recent July 2011 hearing. FINDING OF FACT The Veteran did not incur bilateral hearing loss in service, sensorineural hearing loss is not shown within the first post-service year and bilateral hearing loss is not otherwise attributable to service. CONCLUSION OF LAW Hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in December 2007. The letter provided VCAA and Dingess notice. VA has obtained the Veteran's service treatment records, Social Security Administration (SSA) records, and VA medical records, assisted the Veteran in obtaining evidence, afforded the Veteran a physical examination, obtained a medical opinion as to the etiology and severity of his claimed bilateral hearing loss, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA audiology examination obtained in this case is adequate. As will be discussed in greater detail below, the examination is predicated on a review of the record and medical findings and considers the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 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 - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b) ; Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). "Organic diseases of the nervous system" such as sensorineural hearing loss are noted to be chronic diseases under 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d) ; Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303 and 3.304; Hensley , 5 Vet. App. at 159-60 . Service connection for sensorineural hearing loss may be granted if the disability becomes manifest to a compensable degree within one year following separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies is 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 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. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) ; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis A review of the Veteran's service treatment records discloses no assessment of bilateral hearing loss or any complaints regarding the ears. On his February 1959 enlistment evaluation, the Veteran's hearing was only tested via a "Whisper Test," and he was noted to have correctly heard 15 out of 15 words bilaterally. The Veteran was provided a reenlistment examination in January 1961. For 1000, 2000, and 4000 Hertz (3000 was not tested) the Veteran had puretone thresholds of 10 decibels each. Additionally, the Veteran did not complain of ear or hearing trouble during this evaluation. The Veteran has stated that he was not afforded a separation examination because he was incarcerated at the time of his separation from service. His service treatment records, however, contain an October 1961 separation evaluation. On this evaluation he was diagnosed with passive-aggressive reaction. His hearing was noted to have remained unchanged from the January 1961 evaluation. He also filled out and signed a report of medical history in conjunction with this separation evaluation, in which he denied a history of ear trouble. Starting in 1966, the VA adapted the American Standards Association (ASA) values when defining the limits of normal hearing. Prior to 1966, the International Standards Aossication (ISO) calibrations were used. Because changing from ISO to ASA is based on changes in calibration, there is a mathematical conversion available to change old ISO values into ASA values. The Veteran's 1000, 2000 and 4000 values of 10, 10, and 10 under the ISO calibration, are 20, 20, and 15 under the ASA calibration. As the Veteran's levels did not change from January to October 1961, these values would be associated with both of his ISO test results. These updated values do not represent hearing loss for VA purposes. The earliest records available regarding treatment for hearing loss are from August 2007 when the Veteran complained of progressive bilateral hearing loss. He denied chronic ear disease, tinnitus and vertigo, but reported "a very long history of bother military and civilian occupational and recreational noise exposure." Testing revealed mild to moderate mid to high frequency sensorineural hearing loss and was then fitted for hearing aids. On his December 2007 claim, the Veteran indicated that his hearing loss began in 1961. In March 2008, the Veteran was afforded a VA hearing examination. He reported progressive bilateral hearing loss and intermittent bilateral tinnitus. He stated that he felt the hearing loss and tinnitus were onset in approximately 1959 or 1960. He reported difficulty hearing with background noise and a need to listen to the television at high volumes. He reported military noise exposure through small arm and machine-guns. He denied combat noise exposure. He denied significant noise exposure prior to and following military service. He reported a history of dizziness that resolved with blood pressure medication. Audiological testing revealed that the Veteran has bilateral hearing loss for VA purposes. The examiner noted that she reviewed the Veteran's claims file, and that his audiometric data showed that his hearing was within normal limits at the time he separated from service. "This coupled with the denial of recreational and occupational noise exposure, the hearing loss is more consistent with presbycusis. Therefore, the hearing loss is less likely as not caused by or a result of military noise exposure." On September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. The letter introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicated that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the Veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. The Veteran's Duty MOS of a "rifleman" and "rocket gunner" are not specifically listed on the Noise Exposure Listing; however, the MOS of an infantryman is noted to have a high probability of exposure to hazardous noise. As such, the VA will concede that the Veteran had exposure to hazardous noise during service. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board finds the Veteran's statements regarding the onset of his hearing loss and his post-service noise exposure to be less than credible. Prior to filing a claim for service connection the Veteran denied tinnitus, and reported a history of military, occupational and recreational noise exposure. Once the Veteran was scheduled for a VA examination, he then stated that he had tinnitus and hearing loss which began in 1959 or 1960 and that he did not have any significant post-service Nosie exposure. The Veteran's service treatment records do not show a diagnosis of or complaints of hearing loss in service. Although he has argued that he was not afforded a separation evaluation, one is contained in the record and his signature is on the prior medical history portion of the evaluation. In both January and October 1961 his hearing was tested as normal. There is no credible evidence to suggest the Veteran's hearing loss began or was conpensably ratable within one year of discharge from service. Additionally, there is no indication that the Veteran's hearing loss was noted as chronic in service, and he has made no credible statements regarding continuity of symptomatology to suggest chronicity. Lastly, the March 2008 examiner opined that the Veteran's reported history and a review of the claims record suggested that his hearing loss is due to presbycusis and is not due to his military service. As such, the preponderance of the evidence is against a claim of entitlement to service connection for bilateral hearing loss. Along these lines, the Board is not denying the claim merely on the lack of evidence of a hearing loss disability in service, or in the intervening years between 1959 and 2007. Rather, the Board's decision is based primarily on the degree of probative value and credibility afforded to the medical opinion and lay statements of record. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs