Citation Nr: 1612204	
Decision Date: 03/25/16    Archive Date: 03/29/16

DOCKET NO.  09-43-779	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from March 1961 to April 1964.  The evidence of record additionally indicates that the Veteran served on reserve duty for multiple periods between 1976 and 1986. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

In August 2013, the Veteran testified at a hearing before the undersigned Veteran's Law Judge at the RO.  A transcript of the hearing has been associated with the Veteran's claims file. 

In January 2014, the Board issued a decision remanding this matter to the Appeals Management Center for additional development.  The requested development and examinations having been conducted, the Board finds the directives have been substantially complied with and the matter again is before the Board.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDING OF FACT

Bilateral hearing loss manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease.



CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

A.  Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in October 2008, prior to the initial unfavorable adjudication in January 2009.  This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined.  As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

With respect to the Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history.  The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) , nor have they identified any prejudice in the conduct of the hearing.

B.  Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The RO associated the Veteran's service and VA treatment records with the claims file.  On remand, any additional service treatment and personnel records, as well as private records, were sought.  The Veteran was asked to provide records or a release form for records from DuPont, but neither was provided.  All identified or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law.  See 38 C.F.R. § 3.159(c)(4).  In this case, VA obtained medical examination and opinions in November 2008 and May 2014.  The 2014 opinion is adequate because the audiologist considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with formulating the opinion, and provided sufficient supporting rationale.  Based on the foregoing, the Board finds the examination report to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claim for service connection for bilateral hearing loss.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Since VA has obtained all relevant identified records and obtained adequate medical opinion, its duty to assist in this case is satisfied.

II.  Service Connection

Generally, to establish service connection a Veteran 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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  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). 

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).  For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service.  38 C.F.R. § 3.307(a)(3).

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309.  Continuity of symptomatology requires that the chronic disease have manifested in service.  38 C.F.R. § 3.303(b).  In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to isolated findings.  Id. 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a).  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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends he is entitled to service connection for bilateral hearing loss.  For the reasons stated below, the Board finds that service connection for bilateral hearing loss is not warranted on a direct or presumptive basis.

Beginning with direct service connection, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, reflected by a September 2008 private audiogram and the 2008 and 2014 VA examination reports.  38 C.F.R. § 3.385.  Therefore, a current disability has been shown.  Second, the Veteran has contended both that his hearing loss was caused by exposure to noise related to his duties as a diesel mechanic in service.  Personnel records reflect that the Veteran served as a diesel mechanic, and therefore in-service noise exposure is conceded.  Based on this evidence, an in-service event, injury or disease has been shown and the second element of service connection met.

Turning to the third element, the preponderance of the evidence is against a finding of a causal nexus between the Veteran's hearing loss and his active duty service.  The Veteran has stated that he believes his current hearing loss had its onset in service and that he did not have any significant noise exposure after service without wearing hearing protection.  He asserts that he worked for many years for DuPont but wore ear protection.  He participates in a single action shooting activity and wears hearing protection.  He did not specifically testify that he has had hearing loss since the exposure to acoustic trauma in service, and he acknowledges in his September 2008 claim that he did not begin hearing loss treatment until 2008.  While the Veteran is competent to testify to the presence of persistent symptoms since service, he is not competent to opine as to the presence of a medical nexus between his service and his current disability, as to do so requires medical expertise.  Jandreau, 492 F.3d 1372.

To the extent that the Veteran contends that his hearing loss had its onset in service, and has been persistent since, such statements are inconsistent with prior statements of record.  Specifically, service treatment records dated from March 1961 through April 1964 show no reported history of either hearing loss or ear trouble generally.  Corresponding medical examination reports are also silent for any complaints of hearing loss to include at separation.  Owing to this inconsistency with respect to this material fact in this case, specifically the persistence of symptoms since service, the Board finds that this inconsistency is significant and undermines the credibility of his statements in this regard, rendering them of no probative value. 

Additional service treatment records from reserve duty reflect multiple audiograms with conflicting reports of hearing loss.  Reports of medical examination dated December 1978, March 1982, and September 1986, the Veteran marked "yes" to the question of whether he currently or had ever had hearing loss.  Significantly, the March 1982 report additionally includes a handwritten summary by the examining physician noting "hearing: high frequency loss."  Nonetheless, hearing loss was denied in December 1975 and June and November 1977.  

VA examination in November 2008 contained a negative opinion as to the etiology of current hearing loss.  However, as the Board pointed out in the 2014 remand decision, this opinion failed to take into account all of the aforementioned reserve duty records noted above, and was accordingly deemed not probative.  

VA medical opinion was obtained in May 2014 based on a review of the record and an examination of the Veteran.  In the opinion, the examiner indicated that it was less likely than not that the Veteran's bilateral hearing loss was causally related to his active duty service.  The audiologist stated:

Review of service treatment records yields the initial documentation of high frequency hearing loss was in 1982 which is 18 years following military separation.  The note of hearing problems noted on December 5, 1978, appears likely to be an administrative recording error in the paperwork.  The veteran denied hearing problems in 1975 and 1977.  Documentation of this veteran's hearing status is poor.  The veteran presents a long-standing positive history of significant occupational noise exposure.  He reports use of hearing protection however, research verifies that the use of hearing protection may minimize, but not prevent hearing loss.  The very sincere veteran acknowledges that he worked in the industrial environment and was exposed to high levels of noise for 28 years.  He does not present hearing test results from the factory hearing conservation program from these years.  As the documentation is poor regarding his exact hearing thresholds at the time of military separation, this examiner may not comment on that other than the denial of hearing loss and hearing problems at that time.

There is no evidence that the audiologist was not competent or credible, and as the opinion is based on accurate facts and supported by a well-reasoned rationale, the Board finds that it is of significant probative value.  Nieves-Rodriguez, 22 Vet. App. 295.  Support for the examiner's theory that the marking of hearing loss in 1978 was an administrative error can be found in the other part of the 1978 examination form wherein defects noted were explained.  Nothing is written about hearing loss, although other defects found were discussed.

VA and private treatment records reflect a notation of bilateral hearing loss for VA purposes in September 2008.  Prior to that, there is the conflicting aforementioned 1975 through 1982 notations in the reserve records.  The record thus does not suggest that the Veteran was on active duty during this time period.  

Based on the competent and credible lay and medical evidence of record, the Board finds the preponderance of the evidence is against a finding of a causal nexus between the Veteran's bilateral hearing loss and active duty service.  While the Veteran has testified as to his belief generally that there is a connection, his statements are outweighed by the 2014 VA medical opinion of record, which indicates that hearing loss was not apparent until well after service, and that record does not support a link between the current bilateral hearing loss and the noise exposure in service.  As the third element is not met, service connection for bilateral hearing loss on a direct basis is not warranted in this case.  38 C.F.R. § 3.303.

Concerning service connection based on the presumption in favor of chronic diseases or continuity of symptomatology, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is considered to be an organic disease of the nervous system and is therefore a chronic disease for VA purposes.  38 C.F.R. § 3.309(a).  As such, these theories of entitlement are potentially applicable.

However, the preponderance of the evidence is against a finding of sufficient manifestations in service to identify the disease entity or manifestation to a compensable degree within one year of separation from service.  Service treatment records for the period of active service are silent for any complaints of hearing difficulty in-service.  Post-service treatment records are silent for any medical evidence that the Veteran had compensable hearing loss for VA purposes until 1982, when noted in the reserve record discussed above.  Actual hearing loss by VA standards was not shown until 2008.  38 C.F.R. § 3.385.  Thus, the first objective evidence of compensable hearing loss is many years after the Veteran's separation from service.

As noted above, to the extent that the Veteran has asserted that his hearing loss began in service and has been persistent since, these assertions are inconsistent with prior statements of records, specifically no complaints were made in service or within the initial few years following service.  As such, the Veteran's statements to this effect are not credible and of no probative value.  While the Veteran has otherwise set forth his belief that his current hearing loss is related to service, these statements are outweighed by the medical opinion.  Based on this evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss either manifested in service to a degree sufficient to identify the disability or to a compensable degree within the first post-service year.  As such, service connection based on the presumption in favor of chronic diseases or on continuity of symptomatology is not warranted.  Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).

Although the Veteran has established a current disability and an in-service injury, event or disease, the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing is causally related to his service or manifested within an applicable presumptive period.  Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102.  For these reasons, the claim is denied.


ORDER

Service connection for a bilateral hearing loss disability is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs