Citation Nr: 1540036	
Decision Date: 09/17/15    Archive Date: 10/02/15

DOCKET NO.  09-03 652A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from December 1970 to December 1977.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which, inter alia, denied the Veteran's claim of entitlement to service connection for left ear hearing loss. 

In a November 2012 videoconference hearing, the Veteran, accompanied by his representative, presented oral testimony in support of his claim before the undersigned Veterans Law Judge.  A transcript of this hearing has been obtained and associated with the Veteran's claims file for review and consideration.

In January 2013, the Board remanded the case to the RO for additional evidentiary development.  Following this development, the denial of VA compensation for left ear hearing loss was confirmed in an August 2013 rating decision/supplemental statement of the case.  The case was returned to the Board in August 2013 and the Veteran now continues his appeal.


FINDINGS OF FACT

Left ear hearing loss was not demonstrated in service, nor was it objectively demonstrated to have been manifest to a compensable degree within one year of service discharge; and the preponderance of the evidence does not establish that the Veteran's currently diagnosed sensorineural hearing loss of his left ear is related to his active military service, to include in-service noise exposure.  





CONCLUSION OF LAW

Hearing loss of the left ear was not incurred, nor is it presumed to have been incurred in active duty.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



I.  The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist.

VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  38 C.F.R. § 3.159(b) has since been revised, and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

The Veteran's claim for service connection, inter alia, for left ear hearing loss was received by VA in May 2006.   Information contained in a June 2006 letter complies with the notice requirements discussed above, including how VA assigns a disability rating and an effective date for a compensation award.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  As fully compliant notice preceded the initial RO adjudication of the claim decided herein in the May 2007 rating decision now on appeal, there is no timing of notice defect.  

VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).  VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the service connection claim adjudicated herein.  

As pertinent to this appeal, the Board finds that the Veteran's service treatment records have been obtained and associated with the evidence.  The Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic information database for any additional pertinent medical records.  Otherwise, the claimant and his representative have not indicated that there was any outstanding relevant evidence that demonstrates a link between the Veteran's left ear hearing loss with his period of active service.  

The Veteran was provided with the opportunity to present oral testimony in support of his appeal before the undersigned Veterans Law Judge, who officiated over a November 2012 videoconference hearing conducted at the RO.  At the time of the hearing, the Veteran was accompanied by his representative and had the benefit of his advice and counsel.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans' Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) explaining fully the issues and (2) discussing the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

As relevant, at the November 2012 videoconference hearing before the Board, the presiding Veterans Law Judge's questions and the oral testimony of the Veteran focused on the elements necessary to substantiate his claim of entitlement to service connection for left ear hearing loss.  See transcript of the November 16, 2012 Board hearing.  The November 2012 hearing has substantially fulfilled his obligations as required under 38 C.F.R. § 3.103(c)(2) (2015).  Bryant, supra.

During the pendency of the claim, the Veteran underwent multiple VA audiological examinations addressing the state of his hearing in June 2006, October 2007, May 2010, and February 2012.  Because of inadequacies in the nexus opinions presented in the foregoing examinations, the Board remanded the case in January 2013 with instructions that the Veteran be provided with another audiological examination.  The examiner was directed to present a nexus opinion fully addressing the relationship between his left ear hearing loss and military service based on the examination findings and a review of the pertinent record, including any evidence that a hearing threshold shift occurred during active duty.  

Accordingly, in July 2013, the Veteran was provided with the examination, after which a VA clinician presented a nexus opinion addressing the matter on appeal.  The nexus opinion obtained was accompanied by an adequate discussion of the facts and a supportive rationale predicated on the pertinent clinical history of the case, to include the Veteran's history of noise exposure during military service.  There are no deficits present which, on their face, render the opinion unusable for purposes of adjudicating the claim decided on the merits herein.  In this regard, the nexus opinion specifically discussed whether or not there was a hearing threshold shift in the audiometric results obtained at the end of the Veteran's period of service as compared to those from entry.  The Veteran's reported lay history of experiencing hearing loss since service was also recognized.  Thusly, the Board finds that the July 2013 VA audiological examination report and the nexus opinion obtained and presented therein are adequate for adjudication purposes with respect to the matter decided on the merits.  Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

As the aforementioned action is in substantial compliance with the instructions of the January 2013 Board remand, an additional remand for further evidentiary development or corrective action is unnecessary.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the left ear hearing loss claim decided herein, and thus no additional assistance or notification is required.  Having been provided with adequate opportunity to submit or otherwise identify relevant evidence in support of his claim, the Board finds that the record does not need to be held open any longer, and that no further delay in the adjudication of this appeal with respect to these aforementioned matter is warranted.  The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board will therefore proceed with the adjudication of this appeal regarding the claim for VA compensation for left ear hearing loss.

II.  Pertinent laws and regulations - service connection.

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110, 1131 (West 2014).  Evidence must 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d) (2015).  

Certain chronic diseases, such as sensorineural hearing loss (as an organic disease of the nervous system), is subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2015).  Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptoms if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); sensorineural hearing loss is a qualifying chronic diseases.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case.  

The Veteran's DD-214 shows that he served for approximately seven years in the United States Air Force, during which time his military occupational specialty was as a masonry specialist.  He has presented credible written statements and oral testimony at his November 2012 Board hearing of being involved in the construction and repair of airbase tarmacs, taxiways, and runways during service, which placed him in close proximity to aircraft operating on the flightline, including high-performance combat aircraft.  His exposure to noise from aircraft engines during service is accordingly conceded.  The Veteran's essential assertion is that his left ear hearing loss is etiologically related to this in-service aircraft engine noise exposure and that he experienced symptoms of reduced hearing acuity in his left ear since service.   The Veteran is deemed competent to report experiencing self-perceivable diminishment of his sense of hearing and its time of onset (see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)).  

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater or where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385 (2015).  The VA audiological examination reports of record establish that the Veteran's hearing impairment in his left ear has been diagnosed as sensorineural hearing loss with puretone auditory thresholds above 40 decibels at 3000, and 4000 Hertz throughout the entire pendency of the claim, which meets the aforementioned criteria.

III.  Entitlement to service connection for bilateral hearing loss and tinnitus.

The Veteran's service treatment records for his period of active duty from December 1970 to December 1977 present the following findings: At entrance into active service, the puretone frequencies measured for his left ear at 500, 1000, 2000, and 4000 Hertz were 0, 10, 0, and 10 decibels, respectively. Audiograms are also of record from February 1974, July 1975, August 1976, and August 1977.  In each instance, his puretone thresholds for his left ear were measured at 500, 1000, 2000, 3000, and 4000 Hertz.  In February 1974, those thresholds were 20, 10, 0, 5, and 10 decibels, respectively, for the left ear.  Later audiograms establish that the February 1974 audiogram was the "reference" audiogram.  Each subsequent audiogram recorded the puretone thresholds and documented the threshold shift, in decibels, from the 1974 audiogram, with "+" numbers as equal to "poorer" hearing and "-" numbers as equal to "better" hearing, per the statement on the forms.  The August 1977 threshold shifts at 500, 1000, 2000, 3000, and 4000 Hz. were +5, +10, +5, +5, and +15 dB for the left ear, respectively.  Those values, the last recorded during service, were 25, 20, 5, 10, and 15 decibels for the left ear at the respective frequencies. 

VA first afforded the Veteran an examination of his hearing in June 2006.  The examiner reviewed the Veteran's claims file and remarked that the claimant had normal hearing in his left ear in July 1975, August 1976, and August 1977.  Puretone thresholds of the left ear during the June 2006 examination were 20, 15, 25, 55, and 55 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively.  Speech recognition for the left ear was 96 percent.  The examiner stated that the configuration of left ear hearing loss presented in June 2006 was consistent with noise exposure.  The examiner noted only that the record indicated hearing loss in the right ear incurred during active service.  (The Veteran is presently service-connected only for unilateral hearing loss of his right ear.) 

VA provided audiology examinations in October 2007, May 2010, and February 2012.  These examination reports show that he has a left ear sensorineural hearing loss that met the criteria for a disability for VA compensation purposes.  However, no comment was provided in the October 2007 and May 2010 examination reports as to whether that hearing loss had onset or was due to his active service.  The February 2012 audiology examination report presented a negative nexus opinion based on the Veteran's service treatment records indicating normal hearing in his left ear at entrance and at separation from active service.  This was deemed inadequate for adjudication purposes for failing to include discussion of whether there was any hearing threshold shift demonstrated by comparing the audiograms from service entrance with those from service separation, indicating onset of a chronic and progressive decline in hearing acuity during service.  

In June/July 2013, a VA audiologist reviewed the Veteran's record, examined him, diagnosed him (as relevant) with sensorineural hearing loss of his left ear, and presented the following opinion:

[The claimant's] hearing remains [within normal limits] bilaterally [from pre-admission examination in July 1970] through separation examination [in July 1977].  [An] exam dated [August 1977]. . . recorded in the patient's [service treatment records] demonstrates. . . hearing within normal limits on the left [ear] (no hearing threshold shift on the left).

[The conclusion is that the Veteran's] hearing [in his left ear] was within normal limits [July 1970] through [August 1977] with no significant threshold shift.  Per [the] Institute of Medicine Study on Noise And Military Service (September 2005), in cases where there were entrance and separation exams and such exams were normal, there was no scientific basis for concluding that hearing loss that develops afterward is causally related to military service.  Therefore, since no significant threshold shift was noted [in the left ear] while [the Veteran was] in the service, it is not likely that the hearing loss [of his left ear] is a result of military noise exposure.  

The Board has considered the evidence discussed above and finds that the weight of clinical evidence is against the Veteran's claim for VA compensation for hearing loss of his left ear.  There is no clinical evidence objectively demonstrating a diagnosis of sensorineural hearing loss in the left ear at the pertinent ratable frequencies of 500, 1000, 2000, 3000, and 4000 Hertz during active duty, or audiometric evidence demonstrating puretone thresholds in the left ear during active service that meets the criteria for hearing impairment under 38 C.F.R. § 3.385.  There is also no objective clinical evidence demonstrating sensorineural hearing loss in the left ear that is manifested to a compensable degree of impairment within one year following the Veteran's discharge from active duty in December 1977, such that service connection may be established on a presumptive basis.  38 C.F.R. §§ 3.307, 3.309 (2015).  

The Veteran has credibly stated that he subjectively perceived onset of diminished hearing in his left ear in service, with continuity of symptoms thereafter to the present day.  However, as he is not a trained audiologist or otolaryngologist, his subjective account of a perceived decrease in his hearing acuity in his left ear is not sufficient in itself to establish that his quantifiably measurable left ear hearing loss during service.  He likewise lacks the professional competence to determine that he met the objective regulatory criteria for a hearing loss disability of his left ear for VA compensation purposes within the one-year presumptive period following his discharge.  His account alone does not establish a nexus between his present left ear hearing loss and his period of military service, and thusly there is no basis to assign service connection for left ear hearing loss based on continuity of symptoms. 38 C.F.R. §§ 3.303(b), 3.385 (2015). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

The opinions presented in the June/July 2013 VA clinical audiologist's reports determined that there was no nexus between the Veteran's current left ear sensorineural hearing loss and his period of active service.  The negative opinions are predicated on the rationale that there was an absence of any clinical findings demonstrating an objective diagnosis of left ear hearing loss in the records contemporaneous with active duty or in the years immediately after separation from service.  He examiner explained that there was an absence of any objectively demonstrated hearing threshold shifts in his left ear at any frequency during active duty, as shown by comparisons of the audiometric evaluations obtained during pre-enlistment examination in July 1970 and examinations administered in August 1977, prior to the Veteran's separation from service in December 1977.  Such findings clearly severed any link between his period of active duty with his current left ear hearing loss disability.  The Veteran has not submitted any other contrary competent evidence linking his left ear hearing loss to service, aside from his own lay assertions.

In balancing the lay opinion of the Veteran against the June/July 2013 medical opinion of the VA audiologist, the Board finds that the lay opinion is less probative.  Specifically, the Veteran's lay opinion has lesser value to prove an association or link between his left ear hearing loss, first clinically demonstrated many years after service, and an injury, disease, or event in service.  To provide such an opinion requires specialized knowledge, which the Veteran has not been shown to have. Grottveit v. Brown, 5 Vet. App. 91 (1993).  Nothing in the record suggests or implies that the claimant has had any formal training in audiology or otolaryngology.  The Board finds that the opinions of the VA audiologists associated with the claim, particularly the clinician who presented the June/July 2013 opinion, are more probative and persuasive as they are invested with the requisite specialized education and training to present such opinions.  Therefore, the Board finds that the opinions of the VA audiologists, particularly the June/July 2013 opinion, outweigh the lay opinion of the Veteran.  Accordingly, the Board finds that the preponderance of the objective clinical evidence is against the claim for service connection for left ear hearing, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for left ear hearing loss is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs