Citation Nr: 1513204	
Decision Date: 03/27/15    Archive Date: 04/03/15

DOCKET NO.  13-10 618	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for left ear hearing loss. 

2.  Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Patricia Veresink



INTRODUCTION

The Veteran had active duty service from August 1968 to March 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 and January 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran was exposed to loud noise during active service.

2.  The Veteran's left ear hearing loss did not manifest to a compensable degree within one year after separation from service. 

3.  The Veteran's left ear hearing loss is not causally or etiologically related to the noise exposure during active service.


CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2014).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The record shows that through a VCAA letter dated March 2011, VA's notice requirements were met with respect to the issues addressed in this decision.  The VCAA letter was received prior to the most recent adjudications by the RO, which cures any timing deficiency.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service  treatment records, VA examination reports, VA treatment records, and lay evidence.  The Board finds that the record as it stands includes additional adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran.

The Veteran was afforded a VA examination in September 2011.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report sets forth detailed examination findings.  Therefore, the examination report is adequate to decide the claim.  Thus, further examination is not necessary.


Service Connection - Hearing Loss

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.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  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 as an organic disease of the nervous system and therefore a presumptive disability.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Board notes that right ear hearing loss and tinnitus have been granted by October 1989 and September 2011 rating decisions, respectively.  Therefore, only left ear hearing loss is addressed in this decision.  

The Veteran contends that he has left ear hearing loss that is related to his active service.  The Veteran reported noise exposure during active service, which is consistent with his MOS.    

Service treatment records are silent regarding any complaints, treatment, or diagnosis of left ear hearing loss.  An October 1963 induction report of medical examination showed clinically normal ears and a whisper test of 15/15.  The first audiometric findings were provided in the August 1968 report of medical examination.  Again, the Veteran's ears were clinically normal and the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
0
0
--
0

The October 1982 audiometric evaluation showed a shift in pure tone thresholds.  At that time, the pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
10
15
20
15
10

On his September 1988 retirement report of medical history, the Veteran denied any ear trouble or hearing loss.  On the corresponding report of medical examination, the pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
15
15
25
20
15

Post-service, the Veteran was afforded a VA examination in August 1989.  At that time, the pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
--
15
15
25
10

The Veteran had 96 percent speech recognition scores for the left ear.  The examiner found the left ear hearing thresholds to be normal.  

Currently, the Veteran reports a history of continued symptoms of hearing loss since active service.  This, however, is inconsistent with the foregoing medical evidence of record, as well as with the contemporaneous medical history he gave at service separation when he denied any history of complaints or symptoms of hearing loss.  Accordingly, the Board does not find the Veteran's currently reported history to be credible, and no probative value is assigned to this contention of chronic hearing problems since service.  In this regard, the Board also notes the Veteran has not demonstrated that he has expertise in medical matters, and the etiology of the Veteran's hearing loss is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence.  Therefore, his opinion that his hearing loss is related to in-service noise exposure is not probative.  

The Veteran was afforded a VA examination in September 2011.  The examiner reviewed the Veteran's claims file and noted the Veteran's lay history and his audiometric findings at entry and separation from service.  At that time, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
30
35
50
40
30

The Veteran's speech recognition score was 94 percent in the left ear.  Based on these findings, the Board notes that the Veteran has a hearing loss disability for VA purposes.

The examiner diagnosed sensorineural hearing loss.  The examiner reviewed the claims file and found that the Veteran's left ear hearing loss is not at least as likely as not caused by or a result of an event in military service.  The examiner noted that the Veteran's service treatment records showed no evidence of left ear hearing loss that warrants service connection.  He specifically noted the normal findings upon entrance into service in August 1968.  He also noted that the September 1988 audiometric findings documented left ear hearing well within the normal range.  The examiner acknowledged the Veteran's exposure to high risk noise, but found that the medical evidence does not indicate that this exposure had a permanent negative impact on hearing in the left ear.    

Based on the evidence cited above, the Board finds that a preponderance of the evidence is against the claim.  Although there was a shift in the Veteran's pure tone thresholds over his twenty years of service, the September 2011 examiner addressed the findings in providing his opinion.  The Veteran's left ear hearing loss had its onset after separation from service and is not causally or etiologically related to service.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the appeal is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for left ear hearing loss is denied. 


REMAND

In January 2015, the RO denied entitlement to TDIU.  Subsequently in January 2015, the Veteran submitted a notice of disagreement regarding the January 2015 rating decision denial of TDIU.  Therefore, the Board finds that the Veteran successfully submitted a timely notice of disagreement regarding the January 2015 rating decision.  The Board must remand the claim for TDIU for the RO to issue a Statement of the Case and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely Substantive Appeal.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

The RO should issue the Veteran a Statement of the Case addressing the issue of entitlement to TDIU.  The Veteran should be clearly advised of the time in which he has to file a Substantive Appeal if he wants to continue an appeal with respect to this matter.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs