Citation Nr: 1601275	
Decision Date: 01/12/16    Archive Date: 01/21/16

DOCKET NO.  13-32 586	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June to September 1988 and from December 1990 to June 1991.  

This claim was initially denied in May 2010.  The Veteran did not appeal and the decision became final.  In July 2014, he testified at a hearing before the undersigned at the RO, and a transcript of that hearing is of record.  The Board reopened and remanded the claim in June 2015 for further development, including scheduling a VA audiological examination, which was undertaken in October 2015.  The Board is satisfied that there has been substantial compliance with the remand's directives and will proceed with review.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

The Veteran does not currently have sensorineural hearing loss in the right ear or in the left ear to an extent recognized as a disability for VA purposes.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

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.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder.  See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

In this case, diseases of the nervous system, including sensorineural hearing loss, are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  

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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b). 

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria.  Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz).  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. 

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 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.  38 C.F.R. § 3.385.  In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  See 5 Vet. App. at 157.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a competent source.  Second, the Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  A layperson is not generally capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

When there is an approximate balance of positive and negative evidence 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. § 7105; 38 C.F.R. §§ 3.102, 4.3.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Turning now to the merits of the claim, the Veteran contends that he has hearing loss due to loud noises that he was exposed to in service.  He states that he was a truck driver, and the truck operations and truck driving was loud.  He also states that he was exposed to noises from military weaponry, including cannons and artillery, during his service in Kuwait.  

The Veteran can describe being exposed to loud noise, such as those caused by vehicles and weapons.  See Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  His lay statements are credible as they have been consistent and are confirmed by the circumstances of his service.  The DD Form 214 indicates that he was in basic motor transport, and that he was awarded a Sea Service Deployment Ribbon and participated in Operation Desert Shield from December 1990 to June 1991.  For these reasons, in-service noise exposure is established.  This, however, is not the end of the inquiry.  The threshold issue is whether in-service noise exposure resulted in bilateral hearing loss.

To that end, the evidence does not show that the Veteran has a bilateral sensorineural hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385.  As discussed above, hearing loss for VA purposes is expressly defined by regulation.  In other words, "hearing loss" for VA purposes is different than the colloquial usage of the term "hearing loss," and it is even potentially different than an assessment of hearing loss disability as might be diagnosed by a competent health care provider.  

For VA purposes, impaired hearing is considered 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.  38 C.F.R. § 3.385.  

In December 2009, the Veteran was afforded a VA audiological examination, which reflects the following puretone thresholds, in decibels:
 



HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
5
LEFT
10
5
5
5
5

The Veteran's speech recognition score using the Maryland CNC Test was 100 percent in his right ear and 100 percent in his left ear.  The examiner indicated that Veteran's hearing in his right ear and left ear was within normal limits.

In October 2015, the Veteran was afforded another VA audiological examination, which reflects the following puretone thresholds, in decibels:
 



HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
15
15
LEFT
10
10
15
15
20

The Veteran's speech recognition score using the Maryland CNC Test was 96 percent in his right ear and 96 percent in his left ear.  The examiner indicated that Veteran's hearing in his right ear and left ear was within normal limits.

As such, the Veteran does not have a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.  The VA examination reports indicate that he does not have an auditory threshold of 40 decibels or greater for any of the designated frequencies, nor does he have at least three auditory thresholds of 26 decibels or greater for the designated frequencies.  He also does not have a speech recognition score of less than 94 percent in either ear.  

Moreover, the evidence does not reflect a medical opinion to contradict the conclusions of the VA examiners.  In support of the claim, a treatment note from a private physician, Dr. S.E., indicates that in December 2011, the Veteran reported having difficulty hearing.  It was noted that he had mild sensorineural hearing loss at 2000 hertz in his right ear (it does not specify what the decibel threshold was at 2000 hertz for the right ear), and normal hearing in his left ear.  

The Board has considered this evidence, but assigns it little probative value because it does not contain puretone threshold scores and does not appear to have used the Maryland CNC Test to measure speech recognition.  Moreover, even assuming the evidence was probative, it is outweighed by the findings of the VA examinations.  Dr. S.E. found that the Veteran had normal hearing in his left ear and "mild" hearing loss at 2000 hertz in the right ear, and the October 2015 VA examiner found that the Veteran had a threshold of 20 decibels at 2000 hertz in his right ear.  As discussed above, the threshold of 20 decibels at 2000 hertz may be considered hearing loss colloquially or by medical professionals, but it does not constitute a hearing loss "disability" for VA purposes.  

In sum, the weight of the competent and credible evidence shows that the Veteran does not currently have a hearing loss disability in either the right ear or the left ear that meets the criteria of 38 C.F.R. § 3.385.  Without competent evidence of a current hearing loss disability, service connection cannot be awarded.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability, there can be no valid claim."); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability).  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Finally, 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 or lay evidence, that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).   

Here, the RO provided a notice letter to the Veteran in February 2012, prior to the initial adjudication of the claim.  Not only did the letter notified him of the criteria to reopen the claim (which was granted in the prior Board decision) but also notified him of what information and evidence must be submitted to substantiate claim for service connection, as well as what information and evidence must be provided by him and what information and evidence would be obtained by VA.  The letter also provided notice of the type of evidence necessary to establish a disability rating and effective date.  The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 

The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim, and there has been no allegation from the Veteran or his representative that he has been prejudiced by any of notice defects.  See Shinseki v. Sanders, 556 U.S. 396 (2009).  Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits.  The duty to notify provisions have been fulfilled, and any defective notice is harmless and nonprejudicial to the Veteran. 

The Board further finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied.  All available service treatment records were obtained.  VA medical records and non-VA medical records are associated with the claims file.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding relevant evidence. 

The Veteran underwent a VA examination in October 2015 obtain medical evidence regarding the nature and etiology of the claimed disability.  The Board finds the VA examination to be adequate for adjudication purposes, as it was performed by an audiologist based on a review of the claims file, a solicitation of history and symptomatology from the Veteran, and an examination of the Veteran.  The examination report is accurate and fully descriptive.  An opinion is provided as to whether the Veteran has the claimed disability and, if so, whether the disability is related to service.  As such, VA's duty to assist with respect to obtaining a VA examination or opinion for the claimed disability has been met.  See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson,  21 Vet. App. 303, 312 (2007). 

The Board finds that the duties to notify and assist the Veteran have been met, so no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs