Citation Nr: 1615733 Decision Date: 04/19/16 Archive Date: 04/26/16 DOCKET NO. 13-22 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from June 1958 to May 1961. These claims come to the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran was scheduled for a Board hearing in October 2014, but did not appear and did not indicate any desire to reschedule. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2015). 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). The issue of a bilateral knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Bilateral hearing loss did not manifest in during service and has not been shown to be related to service, nor was an organic disease of the nervous system manifest within one year of separation from active service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, and an organic disease of the nervous system is not presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.6(a), (d), 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts entitlement to service connection for bilateral hearing loss. Specifically he asserts that he was exposed to acoustic trauma during service, which caused his currently diagnosed bilateral hearing loss. After a careful review of the evidence of record, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 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. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In order to establish service connection for the claimed disorder, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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 other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309; see also Fountain v. McDonald, No. 13-0540 (Feb. 9, 2015). For the showing of 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 an organic disease of the nervous system, which includes sensorineural hearing loss, is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2015). 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, or 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 results of the February 2012 VA examination show that the Veteran has hearing loss that meets these criteria. The Veteran has been diagnosed with bilateral moderately severe to profound sensori-neural hearing loss. The February 2012 VA examination found thresholds over 40 decibels in the 1000, 2000, 3000, and 4000 hertz frequencies of the right ear and the 2000, 3000, and 4000 hertz frequencies in the left ear. As such, he meets the criteria of 38 C.F.R. § 3.385 and the first element of service connection has been met. The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury. A review of the Veteran's service treatment records reveals that he was administered the "whisper test" during service and the results of an audiogram reflecting all thresholds were 0 were recorded. The Veteran has argued that either the results of the examination are incorrect, or in the alternative that he was not administered a hearing examination upon separation from active service. The VA examiner in November 2013 concluded that whether the Veteran actually received a separation audiogram could not be resolved without resort to speculation. He explained that all 0 thresholds were frequently seen in audiograms in the 1960s and 1970s and the examiner has to assume this indicated a screening at a 0 decibel level but he further noted that if actual threshold testing is conducted it would be unusual for the threshold at every frequency to be 0. The Board agrees with the Veteran that the results of his separation examination results are questionable. Although the separation examination is of little probative value, in Hensley v. Brown, the Court explained that the failure to meet VA's criteria for hearing loss at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. 5 Vet. App. 155, 159-60 (1993). In other words, a claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Id. Accordingly, any deficiency with the separation examination is not prejudicial to the claim. In this case, the Veteran has argued that his hearing loss began during basic training when he suffered from acoustic trauma after being exposed to rifle and weaponry fire as well as artillery and tank fire. The Veteran's military occupational specialty was in armored infantry; he often went out into the field for up to one month at a time and worked alongside armored tanks while stationed in Germany. The Board therefore concedes acoustic trauma in service. While the Veteran has argued that he was exposed acoustic trauma in service, there is no evidence of record that the Veteran was diagnosed or treated for hearing loss in service. In other words, the Board finds that no chronic symptoms of hearing loss were manifested during service. In fact, although the separation examination is questionable, the Board notes that the Veteran denied a history of ear, nose or throat trouble and running ears on his March 1969 report of medical history. The Board finds that the Veteran did not continuously manifest symptoms of hearing loss in the years after service or to a degree of ten percent within one year of service separation. In fact, medical evidence suggest that the Veteran was diagnosed and treated for hearing loss in February 2001, which is almost 40 years after service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Accordingly, service connection on a presumptive basis is not warranted. 38 C.F.R. § 3.307, 3.309. The Veteran underwent several VA examinations to determine if his current bilateral hearing loss was related to service. The first examination was in February 2012, and after examining the Veteran, reviewing his service treatment records, and diagnosing the Veteran with hearing loss, the examiner opined that the Veteran's current hearing loss was as least as likely as not related to service. The rationale for this opinion was the lack of evidence in service of a treatment or diagnosis of hearing loss in service. The Veteran underwent a second examination in September 2013 for hearing loss, and again the examiner gave a negative opinion based upon lack of evidence of hearing loss in service, and the examiner referenced the hearing results of his hearing examination. The examiner was asked in November 2013 to provide a clarifying opinion on whether the results of the separation examination were accurate. The examiner opined that the examiner could not provide an opinion on this matter without speculation. The examiner also provided an opinion regarding an article the Veteran submitted related "age-noise interaction that exacerbates age-related hearing loos in previously damaged ears". The study was conducted on mice. The examiner opined that the article did not appear to support the Veteran's contention that his military noise exposure in early adulthood exacerbated any currently diagnosed age-related hearing loss. The Veteran submitted a medical treatise in support of his claim and in an April 2012 statement referenced the National Academy of Sciences report "Noise and Military Service: Implications for Hearing Loss and Tinnitus". The Court has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive'." Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Medical treatise evidence may indicate enough of a basis of a generic relationship to establish "a plausible causality based on objective facts." Mattern, 12 Vet. App. at 228 (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). In the present case, the Board does not find this article probative as to the issue of service connection because it does specifically relate to the Veteran nor does it provide an opinion as to whether the Veteran's currently diagnosed hearing loss is related to his military service. Furthermore, the VA examiner reviewed the article and specifically explained that the article suggested that when mice were exposed to acoustic trauma at 6 weeks old or less, the age-related hearing loss later on was greater and the acceleration of such hearing loss decreased dramatically if the mice did not receive noise exposure until they were 8-16 weeks of age. The examiner noted that mice reach maturity at 6 to 8 weeks of age. The examiner explained that if we assumed the same effects in humans it would seem that it would be if the individual received acoustic trauma in early life prior to puberty and accordingly the article did not support the Veteran's contention that noise in early adulthood exacerbated age-related hearing loss. The Board acknowledges that the Veteran himself has claimed that he suffers from bilateral hearing loss as a result of his active service. While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., decreased hearing ability; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not always competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). In this case, to the extent to which the Veteran tries to establish the etiology, determining the etiology of hearing loss is a more complex matter that depends on knowledge of different types and presentation of hearing loss and medical testing. Consequently, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). While, a lack of diagnosis of hearing loss in service is not a bar to entitlement to service connection, a key element for the grant of service connection is a nexus of the current disability to some incident or injury in service. The Board finds that there is insufficient medical evidence of record to support an etiological link between the Veteran's current diagnosis of bilateral hearing loss and his active service. The preponderance of the evidence is against the claim of service connection for bilateral hearing loss; there is no doubt to be resolved. Service connection for bilateral hearing loss is not warranted. Duties to Assist and Notify When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through notice letters dated May and December 2011 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2015). The Veteran was provided VA examinations in February 2012 and September 2013 with an addendum opinion in November 2013, all of which are adequate for the purposes of determining service connection as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim was then readjudicated by a June 2014 supplemental statement of the case. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Service connection for bilateral hearing loss is denied. REMAND The Veteran has asserted entitlement to service connection for a bilateral knee disability. The Veteran has been diagnosed with left and right knee disabilities, status post-surgery. He contends that these disabilities began in service; specifically that he was treated in service for a knee/leg injury in April 1959. There is evidence in the record that the Veteran was treated over several days for a knee/leg injury and he has not been provided an examination to determine whether or not any currently diagnosed bilateral knee disability is related to the Veteran's active military service. As such, the Board is remanding for a VA orthopedic examination to determine the etiology of his current bilateral knee disability. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any currently diagnosed knee disability. The claims file (i.e. the paper claims file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE), including this remand, must be made available to the examiner for review. Any testing deemed necessary, including X-rays, should be performed. All pertinent pathology should be noted in the examination report. The examiner is requested to address the following: a. Provide a current diagnosis of the Veteran's current knee disabilities. b. Provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that such back disability is etiologically related (incurred in, caused or aggravated by) the Veteran's active service, to include the treatment he received in April 1959 for a knee/leg disability. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, provide him a supplemental statement of the case. Allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs