Citation Nr: 1601745 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 13-27 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Starks, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1965 to March 1969. The matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The September 2011 rating decision denied service connection for bilateral sensorineural hearing loss, incontinence, and prostate cancer with erectile dysfunction. In an October 2011 notice of disagreement, the Veteran requested a Travel Board hearing. The hearing was scheduled to be held in May 2013; however, the Veteran cancelled the hearing. The Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2015). In rating decisions issued in April 2014 and June 2014, the RO granted service connection for prostate cancer associated with herbicide exposure, and erectile dysfunction. Because these isssues were resolved by the RO, they are no longer on appeal and not subject to appellate review. In a May 2015 decision, the Board granted service connection for urinary incontinence, as a residual of the service-connected prostate cancer. In that same decision, the Board remanded the claim of service connection for bilateral sensorineural hearing loss for further development, which has been completed. This claim was processed using the Veteran's Benefits Management System (VBMS). A review of the Veteran's Virtual VA claims file reveals documents that are either duplicative or irrelevant to the issue on appeal. FINDING OF FACT The Veteran's bilateral hearing loss disability did not manifest during, or as a result of, active military service, or within a year of discharge. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. A service connection claim that provides for disability-compensation benefits consists of the following five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice elements of the claim). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). These notice requirements were accomplished in a letter sent in August 2011, prior to the initial rating decision. This letter also included notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman. Duty to Assist VA also has a duty to assist the Veteran in the development of a claim. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. Here, the RO has obtained service treatment records and VA and private medical treatment records, and those records have been associated with the Veteran's claims file. The Veteran was afforded VA examinations in August 2011 and August 2015. The Board finds that the August 2011 VA examination report is inadequate because no rationale accompanied the conclusions provided therein. The Board finds that the August 2015 VA examination report is adequate because the examiner's findings and conclusions are based on a clinical evaluation, interview of the Veteran, and review of the Veteran's medical history and claims file. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, an additional remand for another VA examination is not necessary. The RO obtained the August 2015 VA opinion pursuant to the May 2015 Board remand. The Board is thus satisfied that there has been substantial compliance with the May 2015 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service, during a period of war. 38 U.S.C.A. § 1110. Generally, to establish entitlement to compensation for a present disability, a Veteran must show medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed in-service injury or disease and the current disability. All three elements must be proved. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case of any Veteran who served for ninety days or more during a period of war after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss, if the disability is manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements of service connection through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold level for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A higher threshold level indicates some degree of hearing loss, but not necessarily a hearing loss for the purpose of VA disability compensation under 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose of VA disability compensation, hearing loss is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. Evidentiary Standards Where a Veteran is seeking service connection for any disability, VA must give due consideration to the places, types, and circumstances of the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent lay and medical evidence. 38 U.S.C.A. § 1154(a). Competency of evidence must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact (i.e., admissible), while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency is a question of fact, and must be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. Credible evidence is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, it has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts Turning to the evidence of record, the service treatment records show that on pre-induction enlistment examination in August 1964, the Veteran did not report a hearing deficiency, nor was defective hearing noted on the examination forms. The Board notes that prior to November 1, 1967, service department audiometric test results 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 Association (ISO)-American National Standards Institute (ANSI). The Veteran's August 1964 enlistment examination revealed puretone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) X 0 (5) LEFT 5 (20) 10 (20) 15 (25) X 15 (20) The Veteran's November 1967 Flying Class III examination, relying on ASA standards, revealed puretone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 5 (10) LEFT 0 (15) 0 (10) 0 (10) 10 (20) 10 (15) In addition, in the November 1967 Report of Medical History, the Veteran denied having experienced any hearing loss or ear trouble. The Veteran's service treatment records reveal no other complaints of hearing loss. Subsequently, the Veteran's January 1969 separation examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 10 LEFT 15 15 15 15 15 The Veteran's military personnel record shows that his duties included performing flight line recovery to insure that all teletype-crypto and special communications aboard the 7th Air Force Airborne Command Control Center were in operational order. The Veteran reports unprotected exposure to noise while performing those duties. A post-service August 2011 VA examination revealed the Veteran's Maryland CNC Word List speech recognition scores to be 82 percent in his right ear, and 86 percent in his left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 65 70 80 LEFT 40 40 70 75 75 The VA examiner concluded that the Veteran's hearing loss was less likely than not to be caused by or a result of an event in military service, but did not provide a fully adequate rationale. The Board remanded the Veteran's hearing loss claim in May 2015 to obtain a supplemental nexus opinion. An August 2015 VA examination revealed the Veteran's Maryland CNC Word List speech recognition scores to be 78 percent in his right ear, and 68 percent in his left ear. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 70 70 75 80 LEFT 55 60 70 70 70 The VA examiner concluded that the Veteran's hearing loss was less likely than not to be caused by or a result of an event in military service. The examiner based his conclusion on the fact that the Veteran's entrance and separation audiologic evaluations revealed hearing within normal limits, and a 2005 Institute of Medicine study that discusses delayed or late onset noise-induced hearing loss. Analysis The Veteran contends that his current hearing loss is related to service. On the basis of the service treatment records alone, a bilateral hearing loss disability under 38 C.F.R. § 3.385 was not affirmatively shown to have been present in service. The service audiologic evaluation conducted on induction in August 1964, did not show a hearing loss disability for VA purposes because the thresholds were 25 decibels or less at the tested frequencies. 38 C.F.R. § 3.385. For the same reason, the service audiologic evaluations performed in November 1967, and on separation from service in January 1969, did not reveal a hearing loss disability for VA purposes. Therefore, service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. As symptoms of hearing loss were not noted in service, and as there is no competent evidence either contemporaneous with or after service that symptoms of hearing loss were noted in service, and as the Veteran has not asserted otherwise, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker, 708 F.3d 1331. The August 2015 VA examination shows that the Veteran has a current diagnosis of a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In a July 2011 Statement in Support of Claim, the Veteran reported unprotected exposure to noise while traveling and repairing flight line communications equipment in Thailand. The Veteran's military personnel record shows that his duties included performing flight line recovery to insure that all teletype-crypto and special communications aboard the 7th Air Force Airborne Command Control Center were in operational order. As such, the Board finds that the Veteran's report of noise exposure is consistent with the place, type, and circumstances of his service. See 38 U.S.C.A. § 1154(a). Although there is evidence of a current hearing loss disability, and while the Veteran may have been exposed to noise in service, competent evidence of a nexus between the two is still required to establish service connection. The Veteran asserts that hearing loss is due to unprotected exposure to noise while in service. The Veteran is competent to describe the onset of impaired hearing, which is within the realm of his personal experience. 38 C.F.R. § 3.159; see Layno, 6 Vet. App. at 469-71. The Veteran, as a lay person, is also competent to offer an opinion on a simple medical condition, or to establish the presence of medical symptoms capable of observation. Kahana, 24 Vet. App. 428, 435. However, determining the etiology of sensorineural hearing loss is not a simple medical condition; it is a complex question that requires medical expertise. The Veteran is not shown to be qualified through specialized education, training, or experience to provide a medical opinion regarding the etiology of his sensorineural hearing loss. Therefore, his lay contentions are not competent evidence on the material issue of causal nexus. See Jandreau, 492 F.3d at 1372; see also Davidson v. Shinseki, 581 F.3d 1313 (2009). As the Board does not find the Veteran competent to express an opinion on the cause of his current impaired hearing, the Board need not reach the question of whether or not the Veteran's statements are credible. Competency is a question of fact, which is to be addressed by the Board. See Jandreau, 492 F.3d at 1377. As the Veteran's lay evidence is not competent evidence to establish the cause of his current hearing loss, the Board must consider the medical evidence of record. The competent medical evidence with respect to causal nexus consists of an August 2015 VA audiological examination report. In the August 2015 VA audiological examination report, a VA examiner (who is an audiologist and qualified through education, training, or experience to offer opinions regarding the etiology of hearing loss) opined that it is less likely than not that the Veteran's current hearing loss is related to his noise exposure in service. The examiner based his conclusion on the fact that the Veteran's entrance and separation audiologic evaluations revealed hearing within normal limits, and his review of a 2005 Institute of Medicine study that discusses the scientific basis for delayed or late onset noise-induced hearing loss, i.e. hearing normal at discharge and causally attributable to military noise exposure 20-30 years later. Considering the findings of the VA audiological examination reports, and in the absence of any competent and medical evidence to the contrary, those reports are persuasive medical evidence against the claim on the question of whether the current hearing loss is etiologically related to service. In addition, there is no evidence in the record to suggest that the Veteran's sensorineural hearing loss, recognized as "chronic" under 38 C.F.R. § 3.309(a), manifested to a degree of 10 percent or more within the one-year period after the Veteran's discharge. Based on the above, the Board finds that the preponderance of the evidence is against a finding of service connection for bilateral hearing loss. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs