Citation Nr: 1606018 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 12-10 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right ear hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1977. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified at a hearing at the San Antonio, Texas RO before the undersigned. This issue was remanded by the Board in April 2014 and January 2015 for further development. It has now been returned to the Board for adjudication. In September 2015, the Board referred the Veteran's claim for an expert medical opinion by a Veterans Health Administration (VHA) audiologist. See 38 U.S.C.A. § 7109 (West 2014); 38 C.F.R. § 20.901 (2015). The VHA audiologist provided her opinion in October 2015. In November 2015, VA referred the opinion letter to the Veteran and his representative for review and allowed 60 days for the submission of any additional evidence or argument. That period has now elapsed and VA has received no response from the Veteran or his representative. A copy of the VHA letter has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the appellant's case should be applied to those electronic records. FINDING OF FACT The Veteran's right ear hearing loss predated his period of active service and, on the basis of all the evidence of record, underwent no increase in severity during service. CONCLUSION OF LAW Right ear hearing loss predated service and was not aggravated during service. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in correspondence dated September 2011 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim and, as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for this issue are in order. The Veteran testified at a VA hearing at the RO before the undersigned in February 2013. During the Board hearing, the undersigned explained the deficiencies in the Veteran's case and the type of evidence he would have to submit to cure those deficiencies. These actions supplemented VA's compliance with the Veterans Claims Assistance Act and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103 (2015) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Pursuant to the April 2014 Board remand, VA afforded the Veteran an additional VA examination and VA obtained an addendum opinion. Those records were associated with the claims file and considered in the October 2014 supplemental statement of the case. Pursuant to the January 2015 Board remand, VA obtained an addendum opinion from the same VA examiner. Those records were associated with the claims file and considered in the May 2015 supplemental statement of the case. The Board therefore finds that there was substantial compliance with the previous remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). The Board has reviewed all of the evidence in the appellant's claims file, including his written contentions, service treatment records, VA and private treatment records, VA examination reports, and an opinion letter from a VHA audiologist. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a disability; medical evidence or, in certain circumstances, lay evidence of the in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a disability is noted upon entry into service or otherwise found to have predated service, the burden falls on the appellant to establish aggravation under 38 U.S.C.A. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If evidence is presented which establishes that the pre-service disability underwent an increase in severity during service, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of those frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). VA is to resolve any reasonable doubt in the Veteran's favor. 38 C.F.R. § 3.102 (2015). Analysis The Veteran asserts that he currently has a right ear hearing loss which predated his active duty service but was aggravated by exposure to acoustic trauma during service. The Veteran's service personnel records establish that he served as an aircraft maintenance specialist. VA has conceded inservice exposure to acoustic trauma and granted entitlement to service connection for a left ear hearing loss. As a preliminary matter, the Board notes that the presumption of sound condition is not for application in this case. Generally, a veteran will be legally presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2015). Here, during a February 1975 pre-entrance examination, the Veteran reported a history of "high frequency hearing loss due to acoustic trauma." Hearing examination results at that time were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 5 5 15 35 The audio portion of the entrance examination was redone in April 1975. The examination results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 5 5 15 35 The results of a February 1976 hearing examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 10 5 5 15 40 The results of a January 1977 hearing examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 5 5 15 45 During his September 1977 separation examination, the Veteran again checked "Yes" for a history of hearing loss. Hearing examination results at that time were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 25 10 10 20 40 The results of a July 2011 private hearing examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 20 30 40 55 80 The Veteran was afforded a VA examination in November 2011. The results of that examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 15 25 35 45 70 The November 2011 VA examiner found that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. Despite this, she opined that it was less likely than not that the Veteran's hearing loss was a result of acoustic trauma during military service. Her rationale for this opinion was the presence of hearing loss at the time of enlistment. She opined that there were significant changes in the Veteran's hearing thresholds during service but that the appellant's preexisting hearing loss was not aggravated beyond normal progression in military service. She was, however, unsure of VA's definition of the terms "significant change in threshold" and "aggravated beyond normal progression." Because the November 2011 examiner admitted that she was resorting to mere speculation and was unsure of the definitions of the terms she was using, her opinion is of limited probative value. The Board remanded the claim in April 2014 for an opinion as to whether there was clear and unmistakable evidence that the Veteran's hearing loss predated his active duty service and was not aggravated beyond the normal progression by service. Pursuant to this remand, the Veteran was afforded a second VA examination in June 2014. The results of that examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 20 20 30 40 75 The examiner was unable to provide an opinion with regard to the etiology of the Veteran's right ear hearing loss because she did not have access to the appellant's claims file. In July 2014, after reviewing the claims file, the June 2014 examiner opined that the Veteran's right ear hearing loss predated service, was not aggravated beyond normal progression during service, and was therefore "unlikely due to military noise exposure." Because the July 2014 VA medical opinion did not apply the proper evidentiary standard as directed in the April 2014 remand, the Board remanded the claim again in January 2015 for an addendum opinion by the same examiner. In May 2015, the June 2014 examiner responded only that the Board's questions "were answered previously" in the July 2014 addendum opinion. In October 2015, the Board received a VHA audiologist's opinion. The audiologist was the Chief of Audiology and Speech Pathology for the VA Boston Healthcare System and had 27 years of clinical experience as an audiologist. The audiologist noted that the Veteran's military occupational specialty had a high probability of hazardous noise exposure but opined that there was "clear evidence to conclude" that the appellant's "pre-existing hearing loss did not increase in disability beyond the normal variability." The audiologist's rationale for this opinion was that she saw no evidence of any hearing threshold shifts at any frequencies from enlistment to separation. In view of the foregoing evidence of record pertaining to the manifestations of the Veteran's right ear hearing loss prior to, during, and subsequent to service, the Board concludes that the evidence of record preponderates against finding that the underlying disorder increased in severity during active service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Under these circumstances, the Board finds that the presumption of aggravation is not for application and aggravation may not be conceded. 38 C.F.R. § 3.306(b). The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a layperson not shown to possess any pertinent medical training or expertise, the appellant is not competent to render an opinion on the etiology of his current right ear hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide a medical diagnosis). Thus, the Veteran's opinion that his current right ear hearing loss was aggravated by traumatic noise exposure during service is not a competent medical opinion and it cannot be assigned any probative weight. Rather, the medical findings and opinions of trained medical professionals warrant greater probative weight than the Veteran's lay contentions. Because all of the medical opinions of record are unfavorable to the Veteran's claim, including the VHA audiologist's opinion, which applied the proper evidentiary standard, the preponderance of the most probative evidence weighs against the claim. In making its determination, the Board considered the applicability of the benefit of the doubt rule. See 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, this rule does not apply and the claim must be denied. ORDER Entitlement to service connection for a right ear hearing loss is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs