Citation Nr: 1620257 Decision Date: 05/18/16 Archive Date: 05/27/16 DOCKET NO. 10-10 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to August 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2011, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in March 2012 and November 2014, on which occasions it was remanded for further development, to include obtaining additional VA examination and opinions. A VA examination was obtained in May 2012 and an addendum opinion was obtained in April 2015. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's hearing loss disability did not have its onset in service, was not manifested to a compensable degree within one year of service separation, and is not shown to be the result of his service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303, 3.304, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 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). In January 2007, the RO sent the Veteran a letter, prior to adjudication of his claims, providing notice, which satisfied the requirements of the VCAA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded a VA examination in March 2012 and an addendum opinion in April 2015. The Veteran has asserted that the opinion rendered in April 2015 was insufficient because the remand directive of November 2014 instructed the examiner to offer an opinion with respect to the noise exposure on the firing range during basic training. The April 2015 VA opinion did not specifically contain the phrase "firing range" in addressing the Veteran's noise exposure in service. However, in reviewing both the March 2012 VA examination and opinion, which discussed the Veteran's noise exposure in relation to his military occupational specialty (MOS) duties as a vehicle mechanic, and the April 2015 addendum opinion which noted review of the claims file again, to include the remand instructions, and used the term "military noise exposure," the Board finds that the VA examiner substantially complied with the remand directives even though she did not specifically mention noise exposure on the firing range. Therefore, the Board finds the addendum opinion to be adequate and no further examination or opinion on this matter to be warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As VA satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §3.159. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered 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. Facts and Analysis The Veteran is currently shown to have a bilateral hearing loss disability and has been granted service connection for tinnitus. He had only a brief period of military service, but asserts that his current hearing loss began in service as a result of exposure to military noise hazards such as the firing range in basic training and occupational exposure in the motor pool. The only relevant record from the Veteran's military service is his pre-enlistment examination in December 1978, which included audiometric testing. At that time, his pure tone thresholds, in decibels were 10, 20, 20, 25, and 25 in the right ear and 10, 10, 30, 30, and 35 in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Based on these findings, the Veteran likely had some mild level of high frequency hearing loss in his left ear at the time of the examination. The Veteran was first seen at VA for complaints of impaired hearing in April 2007, at which time stated that his hearing and understanding had been bad for years and getting worse over time. He gave a history of noise exposure in service which he felt had contributed to his hearing problem and said that recreational noise hazards were not a factor. The audiometric evaluation yielded pure tone thresholds of 35, 45, 65, 60, and 45 in the right ear and 25, 55, 60, 60, and 45 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The provider diagnosed mild to moderately severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear. Hearing aids were deemed warranted. At hearing in August 2011, the Veteran testified that while in service he began to experience ringing in his ears, which was bad enough that he did not realize he also had some loss of hearing. He said he did not seek treatment for the problems because he was told it was a common reaction after shooting weapons, that everyone had it, and that he believed it would go away. He was not given a hearing test at the time of service separation. He testified that his hearing loss had increased since he left service. In March 2012, the Veteran was provided a VA audiometric examination. His puretone thresholds were 25, 50, 60, 50, and 45 in the right ear and 20, 60, 60, 55, and 45 in the left ear. Speech discrimination testing was 92 percent in the right ear and 100 percent in the left ear. The examiner diagnosed sensorineural hearing loss in both ears, including at a frequency of 6000 Hertz and above. The Veteran reported that his noise exposure consisted of his military service as a vehicle mechanic and denied having any civilian noise exposure. At the time of the examination, the examiner did not have access to the Veteran's claims file and could not offer an opinion on causation. In May 2012, the examiner provided an addendum opinion after reviewing the claims file. The examiner noted that at the time of service entrance the Veteran appeared to have hearing thresholds affected by noise exposure, in that it was better in the low frequencies and at 6000 Hertz than in the mid-frequencies, which are generally the ones affected by noise exposure. The examiner also observed that the Veteran spent only two months and 11 days in service and that, during boot camp, he was placed on light duty because of an arm injury that left him unable to perform his mechanic's duties. The examiner consulted OSHA (Occupational Safety and Health Administration) guidelines in order to predict the effect of the Veteran's occupational noise exposure during his two and a half months of military service. Based on the OSHA charts, the examiner calculated that as a worst case scenario the Veteran would have experienced, at most, less than one-half a decibel change in his hearing with two and half months of steady exposure to the noise levels expected for his occupation. Based on the short amount of time of possible noise exposure, the examiner offered the opinion that it was less likely than not that the Veteran's hearing loss was incurred in service. In April 2015, the VA examiner was asked to provide an addendum opinion to specifically address the Veteran's contentions regarding his noise exposure in service, including on the firing range. The examiner again reviewed the file and again noted the brief period of service which made occupational noise exposure an improbable cause of the Veteran's hearing loss. The examiner also stated that based on the Veteran's hearing acuity at the time of service entrance with indications of noise exposure and the limited time frame of the Veteran's service, it is less likely than not that the Veteran's hearing loss is related to his military noise exposure. After a review of the entire record, the Board finds that service connection for bilateral hearing loss disability is not warranted. While it is clear that the Veteran currently has a hearing loss disability, there is no evidence on which to relate that hearing loss to service, which ended more than 25 years before his first diagnosis of hearing loss. The evidence shows that at the time of enlistment the Veteran had evidence of some impaired hearing in the left ear (but not rising to the level of recognized disability and thus incurrence, not aggravation, is the subject of the instant analysis), which the VA audiologist has stated is consistent with a noise-induced hearing loss. The Veteran is conceded to have been exposed to loud noises in service, to include both small arms fire on the firing range in basic training and engine noise in his work as a motor vehicle mechanic. However, the Veteran's term of service was unusually brief - just two and one-half months - and at least a portion of that was spent on light duty status because an injury to his arm left him unable to perform his mechanic duties. The only competent medical evidence with respect to the Veteran's in-service noise exposure is that of the VA examiner, which is against the Veteran's claim. Specifically, the examiner noted that the Veteran's short time in service and the expected level of noise exposure based on OSHA calculations would not result in hearing loss, and reiterated that opinion when asked to include the noise exposure from the firing range into her assessment. The Veteran has provided no competent medical evidence to the contrary beyond his own assertions, and, although he is competent to provide evidence regarding his own experiences, he is not competent to provide a medical opinion regarding a link between his current hearing loss disability and his brief period of military service many years ago. In light of all of the above, the preponderance of the evidence is against the Veteran's claim of service connection. The benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss disability is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs