Citation Nr: 1614844 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 14-32 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In pertinent part, the RO denied service connection for bilateral hearing loss. In July 2010, the Veteran filed a notice of disagreement as to the bilateral hearing loss claim only. In August 2014, the Veteran filed a statement of the case. The Veteran filed a substantive appeal in August 2014. In December 2015, the Board remanded this matter for additional development. 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 is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In the instant service connection case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2009 letter, sent prior to the initial unfavorable decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. That notice letter also provided notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The Board notes that the AOJ has been unable to locate the Veteran's service treatment records. (February and April 2010 VA memorandums). The RO provided such information, and informed the Veteran of the opportunity to provide alternative supportive evidence, in numerous letters. (January, February, and March 2010 letters). In March 2010, the RO contacted the Veteran, and he informed them that he had not received treatment for his claimed disorder in service. To date, he has not provided any records. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. VA has a duty to assist the Veteran in developing his claim, which includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. The AOJ obtained and considered the Veteran's post-service VA and private treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board notes that there is a VA consult request as to bilateral hearing loss, and that the earliest appointment possible would have been February 4, 2016. The Veteran specifically indicated in a form dated on February 5, 2016 that there was no additional evidence regarding his appeal and that he would submit any additional evidence if located. The Veteran was again informed of his opportunity to submit additional evidence in a March 2016 letter. The Veteran has not submitted any additional evidence; as such the record implies that no such consult has been obtained and that no additional VA medical records need to be obtained. Moreover, the consult request indicated it was for obtaining audiology services; there was no indication that a medical opinion would be obtained even if the request had occurred. Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records. Per the December 2015 Board remand, the AOJ also obtained more recent VA medical records and a February 2016 VA examination. Such VA examination and accompanying opinion are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include her available service treatment records; and a physical examination. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In this regard, the Court of Appeals for Veterans Claims (the Court) has held that VA's policy of conducting all audiometry testing of hearing loss claimants in a sound-controlled room is valid. There was no expert medical evidence demonstrating such an audiometry test produces inaccurate, misleading, or clinically unacceptable test results. Moreover, there was no evidence of the existence of any alternative testing method available. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran has not indicated that a more accurate way of testing his hearing loss is available or that a new VA examination would yield different results. The Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Bilateral Hearing Loss Claim A. Applicable Law 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes 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, 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. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra. at 159. B. Factual Background and Analysis The Board initially notes that the Veteran currently has bilateral hearing loss that reaches the level of a disability for VA purposes under 38 C.F.R. § 3.385. (February 2016 VA examination). As will be explained herein, the Board finds that service connection for bilateral hearing loss is not warranted. The Veteran contends that he has bilateral hearing loss due to service. Though he served as a stock clerk in service, the Veteran contends that he had not received adequate hearing protection while in service and that none of his post military occupations or recreational activities put him around as much noise producing areas as his military service. (August 2014 VA Form 9). As to the Veteran's contentions, he is competent to describe the nature and extent of his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, while the Veteran argued in his VA Form 9 that he was not provided adequate hearing protection in service, he has not specified what noise exposure he received in service that would have been more than his post-service work in a noisy factory or as a surveyor. The Veteran has also not indicated how or when he was not provided adequate hearing protection in service. The Veteran's specialty listed on his DD 214 was stock clerk, which is not supportive of finding regular in-service duties that would involve loud noise exposure. Furthermore, the Veteran reported to the February 2016 VA examiner that he had also not had any hearing protection, while working for a noisy factory or as a surveyor. His reports of post-service noise exposure were actually more specific than his reports of in-service noise exposure. Given the lack of specificity and clarity regarding his in-service noise exposure, the Board finds that such reports are of limited probative value. Also, to the extent that the Veteran may be claiming to have noticed chronic hearing loss since service, the Board does not find that contention to be credible. In an April 2005 Scott and White private medical record, the Veteran specifically denied having bilateral hearing loss - over 4 years prior to his current claim. Furthermore, the Veteran himself has indicated that he did not seek any treatment for hearing loss in service. To the extent the Veteran may imply to have had chronic hearing loss symptoms, which he claims he noticed to have begun during service, such a contention would be inconsistent with the contemporaneous evidence of record. The Board finds that such a contention is not credible. As noted above, the Veteran's service treatment records are not available for consideration. However, in March 2010, the RO contacted the Veteran, and he informed them that he had not received treatment for his claimed disorder in service. Scott and White private medical records generally document findings of normal head, ear, eye, nose and throat. (July 2004, October 2004, April 2006, and January 2007). In April 2005, the Veteran specifically denied having hearing loss. The Veteran filed the current claim in September 2009, over 50 years following his discharge from service. VA medical records document occasional findings regarding hearing loss. An April 2010 VA medical record documents that in an assessment for patient education, the provider found that a barrier to learning was that the Veteran was hard of hearing. In October 2010, the Veteran complained of hearing loss. The provider found that the Veteran needed to get his ear irrigated. The only medical opinion by a medical professional of record is from a February 2016 VA examiner, who diagnosed him with bilateral sensorineural hearing loss. She opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. She noted review of VBMS records, but that no service treatment records were available. However, she noted that the Veteran had active duty from 1950 to 1951 and served as a stock clerk. At the examination, the Veteran reported post-military occupational noise exposure working in a noisy factory and as a surveyor, without use of hearing protection. The examiner found that due to the absence of ear and frequency-specific audiometric testing on enlistment and separation physicals, it was not possible to determine if there was a change in hearing during military service. However, she further opined that based on the evidence provided, including the low probability of military noise exposure and his self-reported post-military civilian noise exposure, his bilateral hearing loss was less likely as not that the hearing loss was related to military noise exposure. The VA examiner's opinion is considered probative, as it is uncontroverted by any evidence of record, apart the Veteran's own implied assertions. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data). Further, absent such countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Given the negative findings of the February 2016 VA examiner and the lack of credibility as to the chronicity report, the Board finds that the evidence of record does not support finding that bilateral hearing loss is related to the Veteran's in-service noise exposure. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs