Citation Nr: 1605702 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 11-20 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Mr. Jeffrey Bunten, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1980 to March 1985. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the Department of Veterans Affairs, Regional Office located in Lincoln, Nebraska (RO). In that rating decision, the RO declined to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss. In a June 2012 decision, the Board reopened the previously denied claim for entitlement to service connection for bilateral hearing loss and remanded the underlying claim to the RO (via the Appeals Management Center (AMC)) for additional development, to include providing the Veteran with a VA audiology examination in conjunction with her claim. The Board again remanded the claim for service connection for bilateral hearing loss in August 2014 for additional development, to include compliance with the 2012 remand directives. This appeal was processed using the Virtual VA and Veterans Benefit Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Bilateral hearing loss disability was not first shown until decades after the Veteran's period of service, and the preponderance of the competent evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to her period of service, to include in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Concerns As noted in the Introduction above, in June 2012, the Board remanded the claim for entitlement to service connection for bilateral hearing loss to the RO (via the AMC) to schedule the Veteran for a VA audiology examination in order to obtain a medical opinion on whether her claimed hearing loss was etiologically related to her in-service noise exposure. The record shows that the RO (via the AMC) twice attempted to provide the Veteran with such an examination, but no examination report was provided due to invalid and unreliable test results. See the reports of July 2012 and October 2013 VA audiology examinations. Both examiners indicated that, despite repeated attempts and reinstruction, the Veteran failed to properly participate in the audiometric testing. Also, no VA medical opinion on the etiology of the Veteran's bilateral hearing loss was provided at those times. When the matter returned to the Board in August 2014, the Board determined that given that audiometric testing results were unreliable in both VA examinations, the Board decided that to provide the Veteran with another examination would be futile. As such, the Board remanded the matter in order to obtain a VA medical opinion that considered the previous March 2004 VA audiology examination results and rendered a medical opinion on whether her claimed hearing loss was etiologically related to her in-service noise exposure. The record now contains the report of a June 2015 VA medical opinion. Accordingly, there has been compliance with the Board's 2012 and 2014 remand instructions, and no additional actions are needed at this time. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent letters to the Veteran in July 2009 that addressed the notice elements concerning her claims for service connection. The letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to her and VA's respective duties for obtaining evidence. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran has been continuously represented throughout the appeal period, by either a Veteran Service Organization or a private attorney, and her representatives have submitted argument in support of her claim. These arguments have referenced the applicable law and regulations necessary to establish entitlement to service connection. Thus, the Board finds that the Veteran demonstrated actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran. In addition to its duty to notify, or inform, the Veteran with regard to her claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. The Board acknowledges that a complete set of the Veteran's service treatment and personnel records from her period of service are unavailable, except for a copy of her 1980 enlistment examination and a few service personnel records. VA has attempted to obtain any available records, however these attempts were not successful. The file contains a detailed memorandum, dated in August 2005, in which VA personnel itemizes events and actions surrounding VA's attempts to locate any pertinent records and concludes with a formal finding that service records are unavailable. The RO has requested that the Veteran send any pertinent records, including, any additional service medical documents that she might have in her possession. Notably, subsequent attempts were made to obtain copies of the Veteran' service records, but they were also unsuccessful. The RO informed the Veteran of the unsuccessful efforts to find her service records. See VA notice letters dated in August 2005 and August 2006. Furthermore, the Veteran informed VA that she worked at the Records Management Center and she had exhausted all her resources to locate her service records without success. See July 2011 VA Form-9. VA treatment records identified by the Veteran as relating to the claim have been obtained, to the extent possible. Furthermore, the Veteran has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The Veteran was provided with VA audiology examination in March 2004 and a VA medical opinion report was obtained in June 2015. The March 2004 VA examination report shows that the VA examiner had access to and reviewed all the evidence in the claims file, recorded the Veteran's reported history as well as the audiometric findings from clinical evaluation. However, the March 2004 VA examiner was unable to provide a medical opinion without resort to mere speculation. Pursuant to the Board's remand directives, the June 2015 VA medical opinion report was obtained. That report shows that the VA examiner review the claims folder, including the findings from the March 2004 VA examination, and provided a medical opinion that was supported by a lengthy rationale statement that addressed the Veteran's 1980 enlistment audiogram results as well as her lay reports of in-service acoustic trauma and history of hearing loss. The Board notes that the VA examiner mistakenly, apparently due to typographical error in the 2014 Board remand instructs, stated that the requested medical opinion was limited to the Veteran's left ear hearing loss as opposed to her bilateral hearing loss. Such error does not greatly detract from the probative value of the medical opinion rendered as it is clear the VA examiner reviewed the Veteran's claims file, was informed of the relevant facts regarding the Veteran's claim, and provided a comprehensive rational statement that addressed the etiology of the Veteran's hearing loss which applies to both her left ear and right ear. The Board finds that the March 2004 VA examination report and June 2015 VA medical opinion report are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. 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. Id. In general, to prevail on the issue of service connection, a claimant 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, 1167 (Fed. Cir. 2004). Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). In addition to the rules regarding service connection in general, there are additional considerations for addressing claims of entitlement to service connection for hearing loss. Under the laws administered by VA, a certain threshold level of hearing impairment must be shown in order for hearing loss to be considered a disability. Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 26 decibels or greater; or when speech recognitions scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. With audiology examinations, the threshold for normal hearing is from zero to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet App. 155 (1993). However, unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley, supra. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for bilateral hearing loss. She contends that her current bilateral hearing loss is related to exposure to extreme noises during her active military service. It is undisputed that the Veteran currently has a bilateral hearing loss disability for VA purposes. Audiometric test results from the March 2004 VA examination demonstrated that the Veteran had pure tone threshold values over 40 decibels at frequencies in both ears. See 38 C.F.R. § 3.385. Accordingly, current hearing loss disability is demonstrated by the record. Element (1), current disability, is therefore satisfied. Concerning in-service disease, as noted above, the RO made a formal finding of unavailability of her service treatment records, except for a copy of her September 1980 enlistment examination report and some service personnel records. Notably, a March 1985 service personnel record shows that the Veteran was considered qualified for separation or re-enlistment based on physical condition and her report PULHES surveys results were listed as "1" (normal) for each area, including her hearing. As such, there is no evidence to demonstrate that the Veteran had hearing loss disability for VA compensation purposes at any point during her period of service. See 38 C.F.R. § 3.303. The audiogram results at the time of her enlistment examination do reflect that the Veteran had some diminished levels of hearing acuity, albeit these findings are insufficient for establishing a hearing loss disability so as to remove the presumption of sound hearing upon her enlistment. See 38 U.S.C.A. §§ 1111, 1137. The Board adds that there is no medical evidence of record demonstrating that the Veteran developed bilateral sensorineural hearing loss as defined by VA under 38 C.F.R. § 3.385 within his first year following his separation from service. Rather, the first medical evidence of any hearing loss disability is not show until 2003, when the Veteran initiated her claim for hearing loss. As such, service-connection for hearing loss may not be presumed under the provisions of 38 C.F.R. § 3.309(a). Concerning in-service injury, the Veteran reported a history of in-service noise exposure that included radar and radio noise, and loud noises from weapons, heavy equipment, and artillery. In various statements, the Veteran has indicated that she was the unit armorer, and she was not issued ear protection during many times on the range. She also stated that she went up on a helicopter to go out to the field, and to check on repairing any weapons. The Veteran's military personnel records, including her DD Form 214, indicate she was a supply specialist attached to an armored unit and she received small fire arms certificate. The Veteran's lay reports of exposure to loud noises are consistent with the circumstances and conditions of her military service, and the Board concedes in-service exposure to acoustic trauma. As such, element (2), in-service injury, has been established. With respect to crucial element (3), nexus or relationship, the June 2015 VA medical opinion report addresses the etiology of the Veteran's current hearing loss disability. That report shows that the 2015 VA examiner, who after reviewing the Veteran's claim folder, opined that it is less likely as not that the Veteran's hearing loss is related to or caused by her military service, to include in-service noise exposure. In formulating this opinion, the 2015 VA examiner recognized the Veteran's reported history of in-service noise exposure, and noted that at the time of her 1980 enlistment there was indication of hearing loss. However, there was no subsequent audiometric finding until 2004, which comes decades after the Veteran's separation from service. The VA examiner noted that the 2004 VA audiometric findings revealed an unusual configuration hearing loss, but that the low frequency loss was cochlear (age-related) in nature. While the audiometric findings do reflect an increase between 1980 enlistment examination and the 2004 VA examination, the VA examiner found that it would require speculation to whether the Veteran's current hearing loss was due to her military duty as opposed to some point after her separation from service. Rather, the VA examiner placed greater weight on the Veteran's 2004 reports regarding her use of hearing protection in service (as oppose to her later statement of occasional non-use of hearing protection at the firing range) and concluded that it was less likely than not that the Veteran's hearing loss was due to any event during her military duty. Essentially, there is no medical opinion of record contrary to that of the 2015 VA examiner. The Veteran has been accorded ample opportunity to furnish medical evidence in support of her claims; she has not done so. See 38 U.S.C.A. § 5107(a) (noting it is a claimant's responsibility to support a claim for VA benefits). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a) , which includes organic diseases of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has considered the Veteran's reports of hearing loss symptoms since her separation from service. The Board notes that it must consider the competency and credibility of the Veteran's lay reports that she has experienced hearing loss symptoms since her period of service. It is noted that the Veteran is competent to attest to the onset and continuity of symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Such a claim, made many years after the Veteran's period of service, is inconsistent with the contemporaneous evidence which strongly indicates that she denied any hearing problems in 1985. At the time of her separation in March 1985, her ears were evaluated as normal as reflected by the "1" in the PULHES surveys. This suggests to the Board that the Veteran did not in fact believe she suffered from hearing loss at that time as it is reasonable to expect that she would have reported such to military medical personnel during her separation process. The Veteran's failure to report pertinent complaints at the time of discharge diminishes the credibility of any current assertions (made many years after the fact in the course of seeking monetary benefit). The record also lacks any documentation of hearing problems until 2003, which comes decades after her separation from service. This lengthy period without treatment for related conditions is evidence against a finding of continuity of hearing problems since service, and it weighs heavily against a claim for service connection on a direct basis. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). In this case, the preponderance of the competent evidence is against a finding of a continuity of symptomatology of hearing loss from service to the present. The Board has also considered the Veteran's lay assertions that her hearing loss disability is related to her in-service noise exposure. Although the Veteran is competent to attest to facts surrounding her claim, such as symptomatology she observed during service and since service, as a lay person, she is not competent to offer opinions that require medical knowledge. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, VA regulations require that a hearing loss disability meets the requirements under 38 C.F.R. § 3.385. Notably, these audiometric findings cannot be determined by the Veteran's own observations of decreased hearing acuity. Further, while the Veteran may sincerely believe that this is the case, she does not have medical training and her statements as to medical etiology are simply outweighed by the opinion of the 2015 VA examiner discussed above. Moreover, the 2015 VA examiner had full knowledge of the Veteran's in-service noise exposure and the examiner was still of the opinion that the Veteran's current hearing loss cannot be linked to service on the basis of evidence of record. The Boards finds the 2015 VA examiner's medical opinion to be entitled to more weight than the Veteran's statements made many years after the fact during the course of an appeal seeking monetary benefits. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim of entitlement to service connection for hearing loss disability. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs