Citation Nr: 1533350 Decision Date: 08/05/15 Archive Date: 08/11/15 DOCKET NO. 12-07 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. A. Hoffman, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. When this matter was last before the Board in October 2014 it was remanded to the RO for additional development. Following the completion of that development it was returned to the Board and is now ready for further appellate review. This appeal was processed using the Veteran's electronic VA folders (Virtual and VBMS) paperless claims processing system. A review of the Veteran's electronic VA folders reveals that all documents in these folders have already been considered by the RO in adjudicating the Veteran's claim. FINDING OF FACT Bilateral hearing loss is not causally or etiologically related to an in-service event, injury or disease, and did not manifest in service or within one year of the Veteran's discharge from 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, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). A. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a June 2010 letter notified the Veteran of the information and evidence needed to substantiate his service connection claim. The Veteran was also notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess, 19 Vet. App. 473. The Veteran's service connection claim was subsequently adjudicated for the first time in a September 2010 rating decision. Thus, because the VCAA notice provided occurred before the initial unfavorable decisions on the claims, VA's duty to notify in this case has been satisfied. B. Duty to Assist In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. The Veteran's VA treatment records, identified private treatment records, and service treatment records have been associated with his electronic VA folder. Additionally, VA examinations were performed in August 2010 and January 2015 to determine the nature and etiology of the Veteran's hearing disability. The Board finds that these examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's disabilities in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claims To establish service connection a Veteran must generally show: "(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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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); see Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, such as a sensorineural hearing loss disability, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). These diseases must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2014). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court." Jandreau, 492 F.3d at 1377. Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). It is the policy of VA to administer and apply the law under a broad interpretation, consistent, however, with the facts shown in the case. Consistently, "[t]he evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder." Bastien v. Shinseki, F.3d 1301, 1306 (Fed. Cir. 2010). When there is an approximate balance of positive and negative evidence, or equipoise, regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). However, deference to the Board's weighing of evidence and inferences is appropriate when it is tethered to the evidentiary record. See Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) (citing Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 405 (2d Cir. 2005) ("Without some specific evidence concerning practices in China, the IJ's [immigration judge] conclusion . . . is speculative." )). The Board has an obligation to provide reasons and bases supporting this decision, but there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels, db), over a range of frequencies (in Hertz, Hz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2014). For the purposes of applying the law 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 or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 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. See 38 C.F.R. § 3.385 (2014). The Veteran contends that he is entitled to service connection for bilateral hearing loss. The evidence of record establishes that the Veteran has a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Further, the Veteran's military occupational specialty suggests he would have been exposed to potentially hazardous noise exposure. Thus, the Board must determine whether a nexus exists between the Veteran's current bilateral hearing loss disability and in-service ear stressors. As a preliminary matter the Board addresses the illegibleness of the Veteran's report of medical history, and report of medical examination, upon separation, which are found in the scanned copy of his service treatment records. The Board's November 2013 remand focused on the August 2010 VA examiner's failure to explain or address the shifts in the Veteran's hearing from the beginning of service until the end of service. Given this focus, the Veteran's hearing test results on his separation report of medical examination were documented in the November 2013 remand as right ear 5 decibels (db) at 2000 and 4000 Hz, 10 db at 1000 Hz, and left ear, 5 db at 1000, 2000, and 4000 Hz. After the November 2013 remand the Veteran failed to appear for the scheduled VA examination. On appeal, however, good cause was shown for his absence, and in October 2014 the case was remanded a second time with guidance substantially similar to the first remand. Sometime between the November 2013 Board remand, and present, the Veteran's paper claims file was converted to the electronic VA folders (Virtual and VBMS) paperless claims processing system. In January 2015, the VA examiner responsible for complying with the Board's October 2014 remand noted that he could not read the Veteran's military separation medical records, however, he gathered the Veteran's in-service shift in hearing information from the Board's November 2013 remand transcription. The Board finds itself in the same situation as the January 2015 VA examiner, that is, unable to read the Veteran's medical paperwork regarding his September 1967 separation from the military. The Board has attempted to get legible copies of the records from the Veteran's archived paper file, however, efforts have been unsuccessful. In order to overcome this evidentiary gap, the Board will combine the measurements on Veteran's legible induction paperwork with the shifts recorded by the Board in the November 2013 to determine the condition of the Veteran's hearing upon discharge. In support of this, the Board notes that neither the Veteran, nor his representative, have disputed the transcribing by the November 2013 Board remand, the transcribing by the October 2014 Board remand, or the January 2015 VA examiner's reliance on those transcriptions. The Board, therefore, finds the November 2013 Board remand's transcription of the Veteran's September 1967 hearing shifts to be credible evidence which it, and the January 2015 VA examiner, can consider in adjudicating the Veteran's claim. The Veteran first received a VA examination concerning the nexus of his hearing loss in August 2010. This examination noted that the Veteran stated he first noticed his hearing loss in 1974 when he applied for a job and failed the hearing test. The Board highlights that this is over six years after his separation from service. The examiner also noted a history of noise exposure in the military, as well as civilian noise because the Veteran was a factory forklift driver. The examiner also noted that the Veteran's hearing limits were normal upon entering the military, and upon separation, but did not address the Veteran's slight degradation in hearing sensitivity at various frequencies. Because the Veteran's hearing was within normal limits upon joining and leaving the military, the VA examiner concluded it is less likely than not that his hearing loss was service-connected. In September 2010, the RO denied the Veteran's hearing loss claim, and the Veteran subsequently submitted a notice of disagreement asserting that his current hearing loss was caused by damage to his ears resulting from firing artillery in Vietnam. The Veteran also reiterated that he was denied a job in 1974 because of his loss of hearing. In March 2012, the Veteran submitted a statement that noise induced hearing loss takes many years to develop and that he feels that his hearing loss had its inception in the military. The Veteran also stated that the test he had in service was not in a soundproof booth, and therefore is invalid. Further, the Veteran stated that during his time as a civilian he wore hearing protection because of Occupational Safety and Health Administration (OSHA) regulations which required him to, or, in the alternative, face immediate termination. In April 2012, the Veteran submitted another statement in support of his hearing loss claim stating that he had a hearing problem for a long time, and could not afford hearing aids until he was able to get them through the VA center. After two Board remands the Veteran received another VA examination offering a second nexus opinion regarding the Veteran's hearing loss, as well as specifically addressing the hearing acuity changes measured in service. The Veteran's November 1965 enlistment report of medical examination contains an audiological report in box seventy-one, the "audiometer" box of the report of the medical examination, which is measured under the ASA standard and has auditory thresholds of the right ear of 15 db at 500 Hz, 10 db at 1000 Hz, 5 db at 2000 Hz, 10 db at 3000 Hz, 5 db at 4000 Hz, and 10 db at 6000 Hz. The left ear was measured at 10 db at 500 Hz, 5 db at 1000 Hz, 5 db at 2000 Hz, 5 db at 3000 Hz, 5 db at 4000 Hz, and 5 db at 6000 Hz. The Veteran's September 1967 hearing test results under the ASA standard measure the Veteran's right ear at 15 db at 500 Hz, 20 db at 1000 Hz, 10 db at 2000 Hz, 10 db at 3000 Hz, 10 db at 4000 Hz, and 10 db at 6000 Hz. They measure the Veteran's left ear at 10 db at 500 Hz, 10 db at 1000 Hz, 10 db at 2000 Hz, 5 db at 3000 Hz, 10 db at 4000 Hz, and 5 db at 6000 Hz. Of note, both of these examinations were prior to November 1967, and therefore were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In converting the November 1965 ASA results to ISO, the Board finds that the hearing test results measure the Veteran's right ear at 30 db at 500 Hz, 20 db at 1000 Hz, 15 db at 2000 Hz, 20 db at 3000 Hz, 10 db at 4000 Hz, and 20 db at 6000 Hz. They measure the Veteran's left ear at 25 db at 500 Hz, 15 db at 1000 Hz, 15 db at 2000 Hz, 15 db at 3000 Hz, 10 db at 4000 Hz, and 15 db at 6000 Hz. In converting the September 1967 ASA results to ISO, the Board finds that the hearing test results measure the Veteran's right ear at 30 db at 500 Hz, 30 db at 1000 Hz, 20 db at 2000 Hz, 20 db at 3000 Hz, 15 db at 4000 Hz, and 20 db at 6000 Hz. They measure the Veteran's left ear at 25 db at 500 Hz, 20 db at 1000 Hz, 20 db at 2000 Hz, 15 db at 3000 Hz, 15 db at 4000 Hz, and 15 db at 6000 Hz. Both the November 1965 and September 1967 audiological reports show the Veteran's hearing to be not a disability, at the Veteran's enlistment and separation, respectively. See 38 C.F.R. § 3.385. The Board does note, however, the slight shift in the Veteran's hearing acuity as measured between 1965 and September 1967. As this could possibly be proof of a nexus between the Veteran's in-service trauma and his current disability, the Board previously remanded this case for a VA examiner to opine on that possibility. In addressing that issue the January 2015 examiner stated that fluctuations of 5 or 10db in testing are not uncommon. The examiner went on to state that such minor factors as earphone placement, background noise, attention span, or environmental distractions could result in these minor shifts. The examiner concluded that shifts of that magnitude are normal variability, and do not constitute a permanent threshold shift. The examiner concluded, therefore, that it is less likely than not that the Veteran's hearing loss is due to military noise. The Board first will address hearing loss manifestation within the first post service year or manifested during service to a sufficient degree to identify the disease. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a); Walker, 708 F.3d 1331. As discussed above, the Veteran's hearing acuity was normal when measured during service, even considering the slight shift in acuity between 1965 and 1967. The Veteran has asserted that the final hearing examination he received upon separating from the military was invalid because it was not in a soundproof booth. However, neither the Veteran, nor his representative, has submitted any competent evidence in support of the assertions that the medical testing was inadequate, and absent such, the Board finds no reason to declare the contemporaneous reports of evaluation in service otherwise inadequate. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) ("The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary."). Further, the Board notes that the Veteran offers little to no evidence of when his hearing loss onset. The Veteran has variously stated that he first became aware of it in 1974, or that he has had a hearing problem for a long time. Even if the Board interprets the Veteran's "long time" statement to include the year immediately after his service, the Veteran's separation physical, as well as the lack of contemporaneous treatment records associated with his hearing loss, outweighs any assertion the Veteran may be making of hearing loss within the first year following service. Given the probative weight of the Veteran's in-service hearing examinations as compared to the unsupported allegations of the Veteran regarding the adequacy of his separation hearing examination, as well as the Veteran's vague statements regarding the onset of his hearing loss, the Board finds the preponderance of the evidence is against finding hearing loss manifestation within the first post service year or manifested during service to a sufficient degree to identify the disease. Additionally, though not relied on to make credibility determinations in this analysis, the Board notes that the Veteran has asserted mutually exclusive arguments in his attempts to establish nexus. On one hand, the Veteran has proposed that the hearing test he received upon separation was inadequate, thereby, ostensibly, showing the Veteran's hearing to be normal when it was not. In the alternative, however, the Veteran has made the contradictory argument that hearing loss takes many years to develop, arguing, in essence, for delayed onset hearing loss. While the Board does not base any of its findings on the Veteran's credibility, it nonetheless highlights these mutually exclusive arguments for the record. Second, the Board will address continuity of symptomatology. The Board notes that the Veteran has never obviously asserted continuity of symptomatology. In fact, the record suggests that the Veteran has asserted that he first became aware of his hearing loss in 1974, when he was denied employment based on his hearing loss. The Board however, relies on the Veteran's lack of in-service manifestation of hearing loss to deny any hearing loss service connection claim the Veteran may have based on continuity of symptomatology. In short, as provided by 38 C.F.R. § 3.303(b), and discussed above, the preponderance of the evidence is against a suggestion or combination of manifestations sufficient to identify the Veteran having a hearing disability. 38 C.F.R. § 3.303(b). Without an in-service manifestation, the Veteran cannot establish continuity of symptomatology. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not applicable to this Veteran's case. The Board is thus left with Shedden service connection, and nexus, specifically, to consider. The Veteran has stated on multiple occasions that he believes his in-service noise exposure has caused his current bilateral hearing loss. While the Veteran is competent to testify to lay observable facts, such as the onset or persistence of symptoms, he is not competent to opine as to a causal relationship between his in-service noise exposure and his bilateral hearing loss, as such a determination requires medical expertise regarding the inner workings of the ears. See Jandreau, 492 F.3d at 1377. VA provided the Veteran with VA audiological examinations in August 2010, and January 2015. After reviewing the Veteran's record, and examining the Veteran, the August 2010 VA examiner opined that the Veteran's hearing being within normal limits upon separation from the military clearly made it less likely than not that his hearing loss was service connected. The 2010 examiner, however, did not address the slight shift in the Veteran's hearing between the 1965 entry and 1967 separation examinations. Thus, the January 2015 VA examiner, after reviewing the Veteran's record, and examining the Veteran, applied medical expertise to conclude that fluctuations of 5 or 10db in testing are not uncommon, and that shifts of that magnitude are normal variability which do not constitute a permanent threshold shift. The examiner concluded, therefore, that it is less likely than not that the Veteran's hearing loss is due to military noise. The Board finds the two VA examiner's Shedden nexus evidence much more probative than the evidence offered by the Veteran, because the Veteran is not competent to offer a nexus opinion on hearing, whereas the two VA examiners are. Additionally, it is clear from the record that both VA examiners reviewed the Veteran's record, discussed the Veteran's hearing history with the Veteran, and conducted testing and examinations consistent with standard medical practices. In weighing the competent evidence of record of a Shedden nexus, the Board finds the August 2010 and January 2015 examinations more probative than the Veteran's lay statements. Therefore, the preponderance of the evidence is against a finding that there is a Shedden nexus between the Veteran's in-service acoustic trauma, and his current disability. The Board notes, however, that it finds the Veteran credible in testifying to a lack of acoustic trauma after the service. That is, the Veteran has testified that his civilian employment did not expose him to significant acoustic trauma. However, the Board notes generally that there are many possible causes to hearing loss, and the Veteran's exclusion of post-service employment or recreational trauma is only a factor to consider in determining nexus, not a dispositive finding that in the absence of such trauma, it was necessarily military associated trauma which caused future hearing loss. Additionally, it is clear from the record that the two VA examiners considered the Veteran's statements in reaching their negative nexus opinions. Based on the competent and credible evidence of record, the Board finds that the preponderance of the evidence is against finding a nexus between the Veteran's bilateral hearing loss and his active duty military service. As explained above, the Veteran is not competent to relate his current hearing loss to service. The most probative evidence is the January 2015 VA examiner's negative opinion. Because the nexus between current hearing loss and service has not been met, direct service connection is not warranted. 38 C.F.R. § 3.303. Although the Veteran has established a current disability and an in-service injury, event or disease, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is causally related to his service or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs