Citation Nr: 1603965 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 12-30 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Montana Veterans Affairs Division ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case for further development in June 2014 and June 2015. That development was completed, and the case was returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal. FINDING OF FACT The Veteran's bilateral hearing loss did not manifest during service or within one year of separation and is not otherwise related to service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in nor aggravated by active service, nor is sensorineural hearing loss presumed to have been so incurred. 38. U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2015); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in November 2010, prior to the initial decision on the claim. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. See June 2015 correspondence (requesting Veteran identify and provide authorization forms for any additional health care providers for claimed disorders). The record also includes written statements provided by the Veteran and his representative. The Veteran has contended that he received an audiological examination as he was out-processed through Oakland, California after he returned from Vietnam. See November 2011 Notice of disagreement. However, the Board has obtained the Veteran's service treatment records, which include his Oakland, California separation examination, and there is no indication that the Veteran received an audiological examination. VA medical opinions were obtained in July 2012, January 2015, and October 2015. 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). The Board finds that the VA opinions, when taken together, are adequate to decide the case because they are predicated on a review of the claims file, as well as audiometric data. The opinions also sufficiently address the central medical issue in this case to allow the Board to make a fully informed determination and are supported by rationale. Id. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's previous remand instructions. In response to the Board's June 2014 remand, the VA examiner issued a new opinion in January 2015. While VA did not have another VA examination done, the VA examiner had access to private exams and determined that there was sufficient information to provide the requested opinion, and that a further VA examination would not likely provide any additional relevant evidence. The Board determined that the January 2015 opinion was inadequate, since it did not properly consider the competent lay evidence of record. The Board then remanded the case in June 2015. In that remand the Board ordered that same examiner to draft an addendum VA opinion, and ordered the AOJ to obtain updated VA and private audiology treatment records. In response to the June 2015 remand, the AOJ retrieved the VA treatment records and sent the Veteran an authorization form to retrieve private medical records. See June 2015 correspondence. The Veteran did not respond to that correspondence. In October 2015, the AOJ got another VA opinion drafted by a different examiner, as opposed to getting an addendum opinion from the same examiner. The Board recognizes the difference in the action taken by the AOJ and the directives in the June 2015 remand regarding who is to draft the new VA opinion. However, the Board finds that the AOJ substantially complied with the Board's June 2015 remand directives by obtaining the requested opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons, the Board concludes that the VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the nervous system, such as sensorineural hearing loss, are considered chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from zero to twenty decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose 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 these frequencies 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for bilateral hearing loss. The Veteran's service treatment records include a March 1968 entrance examination where his ears were found to be normal and an audiological evaluation showed no disability. The service treatment records do not document any complaints, treatment, or diagnosis of hearing loss. On the February 1971 separation examination, the Veteran's ears were once again found to be normal. The Board acknowledges the Veteran's statement that he was given a hearing check-up after he returned from Vietnam and was shown a graph which a technician explained showed hearing loss. See November 2011 Notice of disagreement. However, the records do not indicate that he was afforded an audiological evaluation upon separation. In fact, that section of the separation examination report was left blank. The Veteran's service treatment records do not suggest that the Veteran had hearing loss during service. Importantly, In the February 1971 Report of Medical Examination, the Veteran's ears were marked as normal and the Veteran noted that he was in good health. Moreover, the record contains no competent evidence that hearing loss manifested to a compensable degree within one year of the Veteran's military service. The Veteran is certainly competent to report as to the observable symptoms he experiences. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, even accepting the Veteran's lay statements of diminished hearing in service and his assertions of diminished hearing since service as credible, the Veteran is not competent to provide the information necessary to establish if a compensable rating was warranted as that requires audiometric testing. See 38 C.F.R. § 3.385. Further, in a veteran's claim for benefits, 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, 492 F.3d 1372 (2007). Here, while the Veteran is competent to report observable symptoms he experiences, he is not competent to identify the medical condition of bilateral hearing loss. Further, there is no contemporaneous medical diagnosis, as the Veteran was not given an audiological exam at separation. Moreover, there is no lay testimony describing symptoms of hearing loss while the Veteran was in service or within a year of separation to support the later diagnosis of bilateral hearing loss. Therefore, the Board finds that a bilateral hearing loss disability did not manifest in service or within one year thereafter. Nevertheless, the absence of in-service evidence of hearing loss disability is not fatal to the Veteran's claim. 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley, 5 Vet. App. at 159. In this case, however, the weight of the evidence of record does not link any current hearing loss to the Veteran's military service. The Veteran's service records show that the Veteran's military occupation specialty was Air Traffic Controller. See DD form 214. The Veteran has contended that he was exposed to acoustic trauma during his active service. In his November 2011 Notice of disagreement, the Veteran stated that he was exposed to both artillery fire and loud noises related to his in-service job. Specifically, the Veteran stated that the aircraft noises and the loud screams into his headphones were the reasons for damage to his ears in service. The Veteran is competent to report an in-service injury, including noise exposure. See 38 C.F.R. § 3.159(a)(2). Indeed, the Board acknowledged his military noise exposure in the June 2014 decision granting service connection for tinnitus. Thus, the Board acknowledges his reported in-service noise exposure as consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). Moreover, the Veteran has a current diagnosis of bilateral hearing loss which meets the requirements of 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure. During the February 1971 separation examination, the Veteran was not given an audiological examination, however, his ears were noted as normal, and the Veteran stated that he was in good health. Further, the Veteran was not diagnosed with bilateral hearing loss until June 2006, 35 years after service, when he was afforded an audiological examination with the Costco hearing aid center. Subsequently, the Veteran received audiological exams from the Family Hearing Center in August 2010, June 2012, and November 2014. Each of which indicated that the Veteran had bilateral hearing loss that meets the disability requirements of 38 C.F.R. § 3.385. While there were no medical opinions given in August 2010, June 2012, or November 2014, there are medical opinions of record pertaining to the Veteran's claim. In the July 19, 2012 private examination report, the examiner checked boxes to indicate that the Veteran's bilateral hearing loss is not at least as least as likely as not caused by or a result of his military service and that he cannot provide a medical opinion without resorting to speculation. On July 27, 2012, the VA physician opined that after his review of the claims file, the Veteran's bilateral hearing loss is not at least as likely as not related to his service. In so finding, the physician stated that there are no entries of hearing loss, tinnitus, or ear trouble in the Veteran's STRs. Moreover, there are no specific incidents, related by the Veteran, which occurred in service resulting in hearing loss or tinnitus, and he noted that the Veteran stated that he was in good health at his February 1971 separation exam. In January 2015, a VA audiologist also opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or related to his service. This audiologist noted that the Veteran's STRs did not mention any hearing loss while in service, no incidents were identified by the Veteran while in service that could be attributed to being the cause of his current hearing loss, and that the Veteran stated the he was in good health on his separation examination. Further, the VA audiologist stated that the current bilateral hearing loss could not have existed in 1971 without co-workers and superiors being aware of it. The Board remanded the case in June 2015, instructing the medical examiner to take into account the Veteran's lay statements. In October 2015, a VA audiologist opined that the Veteran's bilateral hearing loss was not at least as likely as not related to his service. In so finding, the audiologist addressed the Veteran's lay statements. Regarding the lay statement of in-service noise exposure, the examiner opined that a military job with a high probability of noise exposure does not always result in hearing loss, so each case must be taken individually. Regarding the Veteran's lay statement about wearing hearing protection while doing construction, the examiner opined, citing peer review literature, that working in construction while wearing ear protection is not a guarantee that hearing loss will not occur. The audiologist also addressed the Veteran's lay statement regarding his delay in reporting his bilateral hearing loss due to his posttraumatic stress disorder (PTSD). The audiologist noted that there is evidence that the Veteran was evaluated and treated by multiple providers, including mental health providers after leaving service. Further noting that, the records of evidence do not indicate that he was unable or unwilling to express medical conditions with these providers because of his PTSD. The audiologist then stated, citing a psychiatrist's opinion, that it would be an atypical condition to suppress medical conditions due to PTSD. Additionally, the audiologist provided a substantially similar explanation to that in the previous opinions regarding the lack of in-service complaints and the lengthy delay from separation to the first diagnosis of hearing loss. Moreover, the audiologist opined that for four decades after service, the Veteran held jobs that had the ability to cause hearing loss from noise exposure. These opinions, when taken together, address the question of whether the Veteran's current bilateral hearing loss is related to service and weigh against the claim. The examiners performed a thorough review of the evidence in the claims file, including the Veteran's treatment records and lay statements. In reading the opinions as a whole and in the context of the evidence of record, the Board finds that the examiner's determinations, which address the central medical issues in this case, were based on an analysis of the evidence and current medical understanding, and are therefore entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion" did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, there is no contrary medical opinion of record as to the nature of the Veteran's current bilateral hearing loss. The remainder of the medical evidence does not suggest a link between the Veteran's hearing loss and service. The record does not reflect, nor does the Veteran contend, that his bilateral hearing loss may be related to any other injury, disease, or event in service other than noise exposure. The Board has considered the statements of the Veteran and his representative. Specifically, the Board acknowledges the Veterans contentions that he incurred bilateral hearing loss from exposure to excessive noise during his military service from his duties as an Air Traffic Controller and from artillery fire. See November 2011 Notice of disagreement. Moreover, that he wore hearing protection while he worked in construction. See July 2012 Private medical treatment record. Further, the Board acknowledges the Veteran's assertions that he has had diminished hearing since service. However, the Board finds that the VA examiner's opinions are more probative, as they were provided by a medical professional with knowledge, training, and expertise and are supported by a complete rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran's reported history and lay statements. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53 ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs