Citation Nr: 1520841 Decision Date: 05/14/15 Archive Date: 05/26/15 DOCKET NO. 12-24 790 ) 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 service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously remanded by the Board in January 2014 and January 2015 for additional development. The Veteran initially claimed service connection for "bilateral hearing loss." See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received in October 2009. In this decision, the Board denies service connection for bilateral hearing loss. However, because the reasons and bases for denying service connection for left ear hearing loss differ from those for denying service connection for right ear hearing loss, the Board has recharacterized the claim as two separate issues, as shown on the title page. FINDINGS OF FACT 1. The competent evidence of record does not reflect a current left ear hearing loss disability for VA purposes. 2. The Veteran's current right ear hearing loss did not manifest during active service or within one year of separation from active service, and the most probative evidence of record does not show that the right ear hearing loss is at least as likely as not etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2014). 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014); see also 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); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued in December 2009 satisfied the duty to notify provisions with respect to service connection. The letter notified the Veteran of the factors pertinent to the establishment of service connection, as well as an effective date and disability rating in the event of a grant of service connection for bilateral hearing loss. VA has also satisfied its duty to assist the Veteran. The Veteran's service treatment records and identified private treatment records have been associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided a VA examination in July 2010. In addition, VA addendum opinions were provided in July 2012, March 2014, and March 2015. To that end, 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). Here, the July 2012 VA examiner reviewed the claims file, considered the Veteran's reported symptomatology, and addressed the likely etiology of the Veteran's bilateral hearing loss. In its January 2014 remand, the Board found the July 2012 VA examiner's opinion to be inadequate. VA therefore obtained an addendum VA opinion in March 2014. However, in its January 2015 remand, the Board found that opinion to be inadequate as well. VA therefore obtained another addendum VA opinion in March 2015. The VA examiner who provided the March 2015 VA addendum opinion reviewed the Veteran's claims file, including the January 2015 Board remand, and included in her report adequate rationale for the opinions expressed. The July 2012 examination and three addendum VA opinions were thorough. All necessary evidence and testing was considered by the examiners. Therefore, the Board finds the July 2012 VA medical opinion, when considered in conjunction with the July 2012, March 2014, and March 2015 VA addendum opinions, to be adequate. In addition, as noted above, the case was previously remanded by the Board in January 2014 and January 2015 for further evidentiary development. Specifically, the January 2014 Board remand found that the July 2012 VA examination and July 2012 VA addendum opinions were inadequate because they were based on an inaccurate application of the law as the VA examiner deemed the Veteran's left ear hearing normal despite a speech recognition score of 92 percent. See 38 C.F.R. § 3.385 (2014). The January 2014 Board remand directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum VA opinion addressing the likely etiology of the Veteran's bilateral hearing loss, specifically noting that speech discrimination score of less than 94 percent constitutes a hearing loss disability for VA purposes. The remand also requested that the examiner identify any post-service noise exposure "[i]f the examiner notes post-military noise exposure as a possible cause of hearing loss." On remand the AOJ obtained the requested VA addendum opinion in March 2014 and readjudicated the issue of entitlement to service connection for bilateral hearing loss. The January 2015 Board remand found that the March 2014 VA addendum opinion was inadequate because it, like the July 2012 VA opinions, was based on an inaccurate factual premise. The January 2015 remand noted that the March 2014 VA examiner again stated that there was no hearing loss in the right ear despite the speech recognition score of only 92 percent. It also noted that the March 2014 VA examiner indicated that she conducted an in-person examination of the Veteran, but that the examination report included no testing results. The remand directed the AOJ to obtain VA treatment records, including any audiological testing results obtained in conjunction with the March 2014 VA examination, and then obtain another addendum VA opinion as to the likely etiology of the Veteran's bilateral hearing loss. The remand also directed that "the examiner should also clarify the type and extent of the Veteran's post-service noise exposure, which was noted on his July 2012 VA examination report." Pursuant to the January 2015 Board remand, the AOJ obtained VA treatment records and forwarded the claims file to a VA examiner to render an opinion consistent with the remand directives. Once the requested opinion was obtained, the AOJ readjudicated the claim and issued a Supplemental Statement of the Case in March 2015. Accordingly, the Board finds that VA complied at least substantially with the January 2014 and January 2015 Board remands. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the July 2012 VA examiner cited post-service noise exposure as a possible cause of any hearing loss the Veteran may have, and that both the January 2014 Board remand and the January 2015 Board remand sought clarification of the type and extent of the referenced post-service noise exposure. Such clarification has not yet been provided. However, the Board notes that the January 2014 Board remand requested that the VA examiner specify the post-service noise exposure only if such was considered a possible cause of any current hearing loss the Veteran may have. In addition, the January 2015 Board remand directed that the VA examiner "should" provide clarification of the post-service noise exposure. Therefore, neither Board remand included an absolute requirement that the VA examiner discuss the post-service noise exposure. Moreover, as discussed in more detail below, in denying the Veteran's claim for entitlement to service connection for bilateral hearing loss, the Board finds that the competent evidence of record does not show a current left ear hearing loss disability for VA purposes. In addition, as to the Veteran's right ear hearing loss, the Board finds that the most probative evidence of record is the March 2015 VA examiner's opinion, which states that the Veteran's current right ear hearing loss disability is most consistent with normal progression and aging rather than noise-induced hearing loss. Therefore, the nature and extent of any post-service noise exposure is not relevant to the decision made herein. Because a further remand to obtain clarification of the post-service noise exposure would only serve to further delay adjudication of the Veteran's claim on appeal, such remand is not required. See generally Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). There is no indication in the record that any additional evidence, relevant to the issues adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Criteria Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for disability shown after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that it manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2014). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 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). Continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Analysis The Veteran contends that he currently has bilateral hearing loss disability that is related to in-service noise exposure. Specifically, he has reported that his hearing loss is the result of exposure to loud noises while serving in the United States Navy aboard the U.S.S. Camden. VA Form 21-4138, Statement in Support of Claim, received in October 2010. Left Ear Hearing Loss The record does not show that there is a current left ear hearing loss disability for VA purposes. As noted above, a hearing loss disability for VA purposes is defined by 38 C.F.R. § 3.385 and is based on objective audiometric and speech recognition testing. Here, the record is absent for evidence of a current left ear hearing loss disability as defined under 38 C.F.R. § 3.385 at any time during the appeal period or in proximity to the claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Specifically, the July 2012 VA examination report includes an audiogram report revealing findings for the left ear of 10 decibels (dB) at 500 hertz (Hz), 10 dB at 1000 Hz, 10 dB at 2000 Hz, 30 dB at 3000 Hz, 20 dB at 4000 Hz, and 20 dB at 6000 Hz, and a left ear speech recognition score of 94 percent. The Board acknowledges that the puretone thresholds of 30 dB at 3000 Hz and 20 dB at 4000 Hz and 6000 Hz indicate some level of hearing loss under Hensley. However, the auditory thresholds for the left ear in the frequencies 500, 1000, 2000, 3000, and 4000 Hz are all less than 40 dB, and only one of the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hz is 26 dB or greater. In addition, the Veteran's speech recognition score using the Maryland CNC Test was not less than 94 percent for the left ear. Therefore, the Veteran's left ear hearing loss does not constitute a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. The Board acknowledges the Veteran's contention that he has left ear hearing loss that is etiologically attributable to in-service noise exposure. The Veteran, as a lay person, is competent to report that he has difficulty hearing; however, he is not competent to diagnose a hearing loss disability for VA compensation purposes. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Diagnosing a hearing loss disability for VA purposes requires medical and diagnostic testing. The Veteran has not been shown to possess the medical expertise or knowledge to diagnose a disability such as hearing loss. Therefore, his contentions do not constitute competent evidence of a current left ear hearing loss disability for VA purposes, and do not weigh against the probative value of the audiological test results in the July 2012 VA examination report. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C.A. § 1110 as requiring the existence of a current disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without evidence of a current left ear hearing loss disability for VA purposes, the Board need not address the other elements of service connection for a left ear hearing loss disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Ear Hearing Loss The medical evidence demonstrates that the Veteran has a current right ear hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. Specifically, the July 2012 VA examination report includes an audiogram report revealing findings for the right ear of 5 dB at 500 Hz, 10 dB at 1000 Hz, 10 dB at 2000 Hz, 15 dB at 3000 Hz, and 15 dB at 4000 Hz, and a left ear speech recognition score of 92 percent. The Veteran has a current right ear hearing loss disability for VA purposes because his right ear speech recognition score using the Maryland CNC Test is less than 94 percent. A report of medical examination on enlistment dated November 1966 includes audiometric results reported in ASA units. VA currently uses ISO (ANSI) units. In this decision, the Board will list both the original ASA units and the converted ISO units, with the ISO units shown in parentheses. The November 1966 findings for the right ear were as follows: -5 (10) dB at 500 Hz, -5 (5) dB at 1000 Hz, -10 (0) dB at 2000 Hz, -5 (0) dB at 4000 Hz. The readings do not reflect hearing loss per Hensley, or a hearing loss disability for VA purposes per 38 C.F.R. § 3.385, on entrance to service. A report of medical examination on discharge dated June 1970 indicates that the Veteran had a normal ear examination and a score of 15 out of 15 in the right ear on a whispered voice test. The Board notes that VA has acknowledged that whispered voice tests are "notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure," and "cannot be considered as reliable evidence that hearing loss did or did not occur." Veterans Benefits Administration Training Letter 211D (10-02), dated March 18, 2010. However, in this case, the service treatment records contain no audiological testing results other than the entrance and discharge examinations. Therefore, the whispered voice testing completed for the Veteran's discharge from active service is the only evidence of record documenting the Veteran's hearing around the time of his discharge. As such, the Board accepts the whispered voice test results of 15 out of 15, along with the normal ear examination at discharge, as probative evidence that the Veteran did not exhibit right ear hearing loss on discharge from active service. Accordingly, the Board finds that the service treatment records do not show that the Veteran exhibited right ear hearing loss at any time during active service or at separation from active service, or that there was a significant threshold shift in his right ear hearing during active service. There is no evidence of record demonstrating that the Veteran had a right ear hearing loss disability between his discharge from active service in June 1970 until the July 2012 VA examination, a period of over 32 years. Therefore, there is no indication that the Veteran experienced hearing loss during service or within one year of discharge from active service. Accordingly, the Veteran does not satisfy the criteria for service connection for his current right ear hearing loss on the basis of in-service occurrence on a presumptive basis as a chronic organic disease of the nervous system. See 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Nevertheless, the Board finds that the Veteran had an in-service injury, consisting of acoustic trauma from noise exposure. The service treatment records document that the Veteran was exposed to noise while passing shells to gun mounts as part of his duties as a boatswain's mate. The Veteran is considered competent to attest to his exposure to noise during active service as he has personal knowledge of the circumstances surrounding his service. See Layno v. Brown, 6 Vet. App 465, 470 (1994). The Board also finds him credible in this regard, as his DD Form 214 indicates that he had a military occupational specialty as a boatswain's mate, and the type of noise exposure the Veteran has reported is generally consistent with that specialty. See Washington v. Nicholson, 19 Vet. App. 362 (2005). In reviewing all of the evidence of record, the Board finds that the most probative evidence weighs against service connection for the right ear hearing loss. Although the Board finds that the Veteran experienced an in-service injury consisting of noise exposure, the most probative evidence does not relate the current right ear hearing loss disability to active service. In this respect, the Board assigns great probative value to the March 2015 VA addendum opinion. The March 2015 VA examiner opined that it is less likely than not that the Veteran's current right ear hearing loss had its onset during his active service. As rationale, the examiner noted that the Veteran had normal auditory thresholds during active service, and that the 92 percent speech recognition test score is indicative of a normal aging process. The examiner also noted that there is a high correlation between auditory thresholds and speech recognition, such that poorer thresholds are associated with poorer speech recognition. As such, the Veteran likely would have had a right ear speech recognition score in excess of 92 percent at separation given the Veteran's normal auditory thresholds at entrance and the lack of evidence showing a significant decrease in thresholds during service beyond normal progression and test/retest variability. The examiner concluded that the July 2012 audiographic findings are consistent with normal progression and aging rather than noise-induced hearing loss. The Board finds the March 2015 examiner's opinions to be probative as the examiner considered the Veteran's reported history, including his account of in-service noise exposure, noted and cited to evidence reviewed, and provided appropriate reasoning for her conclusions, which were not based solely on evidence of normal audiological testing at separation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not argued, and the record does not show, that he has experienced right ear hearing loss continuously since active service. Rather, the Veteran has specifically contended that his current right ear hearing loss is the result of in-service noise exposure. See VA Form 21-4138, Statement in Support of Claim, received in October 2010. To the extent that the Veteran's claim itself constitutes an argument that the right ear hearing loss has been present continuously since active service, the Veteran is competent to report in-service noise exposure, his current symptoms, and the history of those symptoms. However, the Board does not find that the Veteran is credible as to his report of continuity of right hearing loss since service. As summarized above, the objective medical evidence of record does not show right ear hearing loss during active service, either per Hensley or per 38 C.F.R. § 3.385. Furthermore, the record is absent for evidence of treatment for or complaint of right ear hearing loss until the Veteran submitted his claim for VA compensation benefits in October 2009, over 29 years after his separation from active service. Additionally, the Veteran is not competent to etiologically relate his current right ear hearing loss disability to service. Although there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the Veteran is not competent to relate his right ear hearing loss to active service as he has not been shown to possess the medical knowledge or expertise to provide an opinion on such a complex medical matter. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). As noted above, the March 2015 VA examiner related the Veteran's current right ear hearing loss to the natural processes of aging. The Veteran is not competent to relate his hearing loss to his in-service noise exposure in addition to, or as opposed to, the natural processes of aging. Therefore, his statements as to the etiology of his right ear hearing loss do not weigh against the probative value of the March 2015 VA examiner's negative nexus opinion. In summary, the record does not show that the Veteran had right ear hearing loss at entrance to or discharge from active service. The record also does not show a shift in right ear hearing ability during service, or a compensable right ear hearing loss disability within the one-year period following separation from active service. In fact, the competent evidence of record does not show a right ear hearing loss disability until over 32 years following the Veteran's separation from active service. Furthermore, the probative evidence of record also does not support a finding of service connection on the basis on the basis of delayed onset. Rather, the probative evidence of record relates the Veteran's current right ear hearing loss disability to normal progression and aging rather than in-service noise exposure. After considering all of the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for right ear hearing loss because the most probative evidence is against a finding that there is a nexus between the current right ear hearing loss disability and the Veteran's active service. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2014); also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs