Citation Nr: 1618698 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 12-28 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from December 1964 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. At no time during, or prior to, the pendency of the claim does the Veteran have a current diagnosis of left ear hearing loss for VA purposes. 2. Right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159 (2015). Proper notice should be provided prior to the initial unfavorable agency of original jurisdiction decision and 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases where a Veteran is seeking service connection, VA must provide notice of all five elements necessary to substantiate 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). An April 2011 letter, sent prior to the initial unfavorable rating decision, provided the Veteran with appropriate notification. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records have been obtained and considered. Moreover, the Veteran was afforded a VA examination in June 2011 with addendum opinion in July 2012 in order to determine the nature and etiology of his claimed hearing loss. The Board finds that such VA examination is adequate to decide the issue as it was performed by a state-licensed audiologist and included a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test pursuant to 38 C.F.R. § 3.385. In this regard, the Board notes that such audiological testing, as well as all audiological testing conducted prior to and during the pendency of the claim, fails to reveal a current diagnosis of left ear hearing loss as defined by VA regulations. Therefore, there is no need for a nexus opinion regarding such issue. With regard to right ear hearing loss, the Board notes that the VA examiners offered an etiological opinion as to the claimed disorder and based their conclusions on a review of the record, an interview with the Veteran, and a full examination. Moreover, such opinion 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"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or 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 Veteran); 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 Veteran 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, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. Analysis 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. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as organic diseases of the nervous system are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 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. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from zero 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 United States Court of Appeals for Veterans Claims (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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left ear hearing loss The Veteran seeks service connection for bilateral hearing loss, which he has asserted was incurred as a result of his exposure to noise during service. In this regard, the Veteran has asserted that he was exposed to noise from jet engines working as a painter on the flight line. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). A June 2011 VA audiological report indicates that on audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 40 45 LEFT 25 20 20 30 35 Speech recognition scores were 96 percent for the left ear and 100 for the right ear. In the instant case, while the Veteran claims to suffer from left ear hearing loss, there is no evidence that such disability meets the standards of hearing loss under 38 C.F.R. § 3.385. In this regard, the only audiometric testing of record is the June 2011 VA examination, which fails to meet the criteria for a diagnosis of left ear hearing loss per VA regulations. The Board has considered the Veteran's allegations that he experienced left ear hearing loss due to noise exposure in service. In this regard, while he is competent to report left ear hearing difficulty, the Board must adhere to the guidelines of 38 C.F.R. § 3.385, which do not provide for a finding of a current disability for pure tone thresholds or speech recognition scores that fail to meet the required minimum pure tone thresholds and speech recognition scores listed in the regulation. The Veteran's left ear pure tone thresholds and speech recognition scores did not meet the required minimum criteria to qualify as a current disability under 38 C.F.R. § 3.385. In this regard, the Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). The Board notes, however, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of issue here, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, the diagnosis of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing, to include audiological testing. In the instant case, there is no suggestion that the he has had any medical training. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose left ear hearing loss, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a left ear hearing loss for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Right ear hearing loss As noted, the Veteran claims entitlement to service connection for right ear hearing loss, resulting from exposure to loud noises through his duties as a painter on the flight line. Such duties are consistent with exposure to noise, and accordingly, the Board concedes in-service noise exposure. Furthermore, the RO conceded noise exposure. First, the Board notes that although in-service noise exposure is conceded, the Veteran's service treatment records are negative for any findings of hearing loss during service. His entrance and separation audiology tests both showed that he had normal hearing acuity, even with conversion to ISO for entrance examination. Service Audiometric testing data dated December 29, 1964 and September 19, 1968; Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss). On a September 1968 report of medical history, the Veteran denied any history of ear trouble or hearing loss. In a June 2011 VA audiology examination, the Veteran reported that he was exposed to jet engine noise as he worked as a painter on the flight line. He indicated that the engine testing was done right next to his office. The Veteran also reported that he used compressors, grinders, and chippers without any hearing protection. The Veteran reported that his post-service noise exposure included driving trucks and riding motorcycles. The examiner noted that given normal hearing on discharge audiogram and no evidence of significant shift in thresholds from induction to discharge, the Veteran's hearing impairment is less likely as not caused by or a result of military noise exposure. In support of his claim, the Veteran submitted a May 2012 statement with audiological evaluation from a private provider that indicates test results display the typical hearing loss configuration/pattern often seen in individuals who have had noise exposure. The examiner therefore found that it is at least as likely as not that some of the Veteran's hearing loss may be contributed to noise exposure. In July 2012, the RO sought an addendum opinion to specifically address the May 2012 private audiologists' opinion. The examiner reviewed the Veteran's entire file and indicated that the hearing loss is less likely as not caused by or a result of military noise exposure. The examiner noted that the private opinion did not directly link the Veteran's hearing loss to his military service. She noted that while the private provider indicated that the Veteran's hearing loss follows a pattern that is typically seen with noise-induced hearing loss, she did not state that it was noise from the military. The VA examiner noted that the noise exposure could have come from a variety of civilian or recreation activities such as his reported history of driving trucks and riding motorcycles. The examiner indicated that both activities have a high-probability of noise exposure and could have caused his current hearing loss after military separation. The examiner reiterated that there is no evidence in the STRs to indicate that the Veteran's hearing decreased during the military, as his discharge audiogram shows normal hearing in both ears. She also noted that the Veteran's hearing loss is not a delayed onset hearing loss from the military. She reasoned that current science indicates that "understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely" (Institute of Medicine). The examiner further noted that with regard to hearing impairment, noise induced hearing loss is just one causality, but there are others, to include the chief reason of hearing loss which is due to aging. Based on the above, the Board finds that the Veteran's right ear hearing loss is not related to service. First, the presumptive provisions of 38 C.F.R. § 3.303(b) does not apply to the Veteran's claim. Right ear hearing loss was not manifest to a compensable degree within one year of separation from service. Furthermore, neither right ear hearing loss nor manifestations sufficient to identify it was shown during service. Rather, hearing tests administered during service were normal and the Veteran denied having any history of hearing or ear trouble during that time period. The Board also finds that weight of the evidence is against the Veteran's claim on a direct basis. As to the Veteran's right ear hearing loss, the Board affords more probative weight to the June 2011 and July 2012 VA audiologist's opinions that it is not related to service, than to the May 2012 private opinion. In addition to the audiometric results and all assertions made by the Veteran during the VA examination, the June 2011 audiologist also reviewed the Veteran's service treatment records. Further, the July 2012 examiner reviewed the entire file, to include the May 2012 private opinion. Because the examiner, in particular the July 2012 VA examiner's conclusion contemplated a more comprehensive review of the Veteran's service, civilian and medical history, the Board considers it to be more probative. The Board notes that the Veteran and has generally contended that his current right ear hearing loss is related to his service. As noted, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson, supra. The Veteran is credible to describe current symptoms such as hearing difficulties. However, as to the etiology of the right ear hearing loss, the Board finds such subject matter to be complex in nature and beyond the competence of a lay person. See Woehlaert, supra. In this regard, knowledge of degeneration of hearing involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Thus, the Board accords the statements of the Veteran regarding the etiology of his right ear hearing loss to have little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones, supra. Additionally, the opinion of the VA examiner who has the necessary training and medical knowledge to competently speak to the issues at hand are highly probative. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his in-service noise exposure and his current right ear hearing loss. In contrast, the VA examiner took into consideration all the relevant facts in providing an opinion, to include his in-service exposure to noise and the current nature of his right ear hearing loss. Therefore, the Board accords greater probative weight to the VA examiner's opinion. Finally, the Board finds the Veteran's statements as to onset of hearing loss to be not credible. The first indication of right ear hearing loss in the record is not until June 2011, more than four decades after he left the military. The Board finds the lack of complaints regarding hearing loss significant, particularly in light of the Veteran's report of medical history at separation from active duty in September 1968. At that time, he reported that he had never had and did not then have ear trouble or hearing loss. This statement, made contemporaneous with military separation, is considered reliable as the Veteran was then seeking only medical evaluation, and was not pursuing a disability claim. In sum, the most probative evidence of record indicates that the Veteran's current right ear hearing loss is not related to service. Accordingly, the preponderance of the evidence is against the claim for service connection for right ear hearing loss and the appeal is denied. Again, in reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for left ear hearing loss is denied. Service connection for right ear hearing loss is denied. ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs