Citation Nr: 1622490 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 08-14 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from December 1952 to December 1956. This appeal arose before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA), Regional Office (RO). Jurisdiction of the case now rests with the Montgomery, Alabama RO. This case was remanded by the Board in April 2010 and in February 2012 for further development. At that time the claim had included a request for entitlement to special monthly compensation on account of being in need of regular aid and attendance of another person (A&A) and entitlement to service connection for posttraumatic stress disorder (PTSD). In August 2013, the RO granted A&A. The case was then returned to the Board. Again, the case was remanded for additional development in August 2015. In December 2015, the RO granted entitlement to service connection for PTSD. Therefore, the only issue remaining on appeal is entitlement to service connection for a bilateral hearing loss. Because the instructions of the 2015 remand have been substantially complied with, the Board may proceed to the merits of the claim. See Stegall v. West, 11 Vet. App. 268 (1991). 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). FINDINGS OF FACT The Veteran's bilateral hearing loss disability is not related to his military service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in August 2006, March and May 2007, April, October and December 2010, June 2011, and February and April 2012. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations in May 2010, May 2011, April 2012 and September 2015. See 38 C.F.R. § 3.159(c)(4). These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. These examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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. Law and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2015). 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(a)(2) (2015). 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. 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 on a direct basis, generally there must be probative 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). For certain chronic disorders, including hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309, 3.384 (2015). Factual background and analysis The Veteran contends that he has a current hearing loss disability that is directly related to his period of service. He has alleged that he was exposed to aircraft noise, as well as the noise from an exploding aircraft. He also stated that in 1953 he had been struck in the head with a crane and that this resulted in bleeding from the right ear. He said that his hearing loss had been present consistently since that time. A review of the evidence of record indicates that the Veteran has been diagnosed with a bilateral hearing loss disability for VA purposes. Therefore, the requirement that there be a current disability in order to establish service connection has been met. The question in this case is whether the diagnosed hearing loss can be related to the Veteran's period of service or to some injury sustained during service. The Veteran's service treatment records include an enlistment examination performed in December 1952 and a discharge examination conducted in November 1956. These relied on a whispered voice test only, which showed that his hearing was "15/15" bilaterally. These records indicate that the Veteran was treated for fungus in the left ear in late 1954; this improved and he received no further treatment. There were no complaints of, treatment for, or diagnosis of hearing loss in service. Significantly, these records do not show that he received any treatment following a head injury, specifically, an injury sustained after having been struck in the head by a crane in 1953 while on a detail in a war zone in Korea. At the time that the Veteran filed a claim for pension benefits in 1980, he reported that he had suffered from multiple ear infections in the past. In May 1990, he was seen by a private physician who found a right inferior tympanic membrane perforation. It was noted to be small and without signs of active inflammation. Later that same month, the perforation was noted to be the same in size and that it could have been present for some time. A November 1994 VA outpatient treatment record noted his complaints of right ear irritation. The canal was red and scaly and the diagnosis was otitis externa. In March 1995, the ear canal was still a little inflamed. In June 1999, he was again seen by a private physician; he reported bleeding and drainage from the right ear that he indicated had been present for about two weeks. The inferior posterior quadrant was perhaps enlarged and there was inflammation of the tympanic membrane. The impression was acute right otitis media, with a perforated membrane. In July 1999, the perforation was noted to be much larger and there was a good bit of tympanosclerosis. An audiogram revealed a moderate to moderately severe mixed hearing loss. It was recommended that he undergo a right tympanoplasty with mastoidectomy. The Veteran was afforded a VA examination in May 2010. The examiner noted the Veteran's assertion that he had decreased hearing since a 1953 head injury which had caused bleeding from the right ear. The Veteran also said that he was exposed to loud noise in service, all without hearing protection (aircraft engines; a jet exploding, firing range). He denied any post-service occupational or recreational noise exposure. After finding a hearing loss on audiogram, the examiner opined as follows: In a complete review of patients C-file no audiometrics were noted for induction or discharge. Since this veteran does report hearing loss ....since the blow to his head in the service and reports no civilian noise exposure, it is believed that this veteran's military noise exposure and the blow to the head are at least as likely as not the cause of his present hearing loss.... The Veteran was re-examined by VA in May 2011. The examiner stated that the C-file had been reviewed. It was again noted that the Veteran stated he was hit on the head by a crane in 1953 that caused his right ear to bleed and that he had also been near a jet when it exploded on the flight line. He again denied any post-service noise exposure. The audiogram found the presence of a bilateral hearing loss. The examiner offered the following opinion: There were no audiometric test results available in the c-file; only whispered voice tests which do not accurately assess unilateral hearing loss or high frequency hearing loss. The previous examiner stated in his report, "Since this veteran does report hearing loss ....since the blow to his head in the service and reports no civilian noise exposure, it is believed that this veteran's military noise exposure and the blow to the head are at least as likely as not the cause of his present hearing loss...." I concur with this opinion. Another examination was conducted by VA in April 2012. After examining the Veteran and finding a hearing loss was present, the examiner checked that a medical opinion regarding the etiology of the hearing loss could not be made without resorting to speculation. The rationale was as follows: Enlistment physical dated 12/24/52 and discharge physical dated 11/19/56 indicated only whispered voice test scores of 15/15. The whispered voice test does not accurately assess high frequency hearing loss, unilateral hearing loss or mild hearing loss and not a valid indicator of hearing acuity....Previously, inaccurate information was given by the veteran regarding events in service, so these statements are not valid to report. There is not enough evidence to support an opinion of etiology of hearing loss in this case. In order to clarify the etiological opinion, the Board remanded for another VA examination, which was conducted in September 2015. The examiner was advised that the statements that the Veteran had previously made about the onset of his hearing loss were not credible and were not to be relied on in rendering an opinion as to causation. A bilateral hearing loss disability was diagnosed. The examiner noted that there was no threshold shift noted in either ear in service. As to both ears, it was opined as follows: Per VARO requests, examiner is not allowed to use any history from Veteran as he has been documented as giving false information in the past. STR's were reviewed as well as private records which were provided in VBMS. Veteran's induction and separation physicals showed normal whispered voice tests in both ears. In the 1980's, private ENT records indicated scarring on TM's. In 1990, Veteran was documented as having a right TM perforation. Today, his right ear perforation was healed, but there was a left ear TM perforation which was confirmed by otoscopy and tympanometry. A hearing test was found in 1999 from Northwest Alabama ENT. At that time, he was found to have normal BONE CONDUCTION in both ears. Bone conduction bypasses the outer and middle ear and directly stimulates the organ of hearing. By having normal bone conduction responses in both ears, it is not possible that any sensorineural or permanent hearing loss was acquired while in service in either ear......He didn't acquire a permanent sensorineural hearing loss in either ear while in active military service. After a careful review of the evidence of record, the Board finds that entitlement to service connection for a bilateral hearing loss disability has not been established. There is no indication that the Veteran had any hearing impairment in service. While he was treated on one occasion for fungus, there is no suggestion in the records that this resulted in any hearing loss; in fact, the discharge examination noted that this condition had been treated without complications or sequelae. The Veteran has also alleged that his hearing loss was caused by a head injury sustained during service in 1953. However, the service treatment records make no mention of any treatment for such an injury, which would be likely had he been struck hard enough to cause the right ear to bleed. He also contended that he was exposed to jet engines and that a particular trauma was being near an aircraft that exploded on the flight line. However, neither his treatment records nor his personnel records confirm such an explosion during his period of service. Therefore service connection on a direct basis is not warranted. Nor is service connection justified on a presumptive basis, as there is no evidence that any hearing loss disability was present to a compensable degree within one year of his separation, that is, by December 1957. The Board has considered the Veteran's statements as to the cause of his hearing loss. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). After reviewing the evidence of record, the Board finds that the Veteran is not credible. This is based partly on a prior statement provided by the Veteran in which he stated that "I was hit on the head while I was hooking a crane to load some boxes in wore (sic) zone Korea while on detail, the time was around the middle of 1953." However, the evidence of record clearly establishes that the Veteran was never in Korea and that he was never in combat. In fact, he was sent to Okinawa after hostilities had ended and served as a vehicle driver, returning to the United States in May 1955. These conclusions are supported by the Veteran's service personnel records. They provide a full and reliable account of his service and note his whereabouts during his period of service. These are considered convincing and probative and outweigh the unsupported assertions that the Veteran has made concerning the onset of his hearing loss. As such, the Board finds the records to be more probative than the Veteran's subjective evidence concerning the cause of the diagnosed hearing loss. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In this case, the Veteran is competent to report his belief concerning the onset of his hearing loss. Layno, 6 Vet. App. at 470. He is not, however, competent to identify the etiological relationship between his service and his current hearing loss. The September 2015 examination, which the Board finds to be adequate, clearly determined, after reviewing all the evidence of record, that his hearing loss was not related to his military service (noting that normal bone conduction tests in 1999 rendered it impossible that any sensorineural or permanent hearing loss was acquired in service). Such competent evidence concerning the nature and extent of the Veteran's hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. Because the examiner had the requisite medical expertise to render a medical opinion regarding the onset of the hearing loss disability and had sufficient facts and data on which to base the conclusion, the Board affords this medical opinion great probative value. The Board has reviewed the examinations that were conducted in 2010, 2011 and 2012. However, these were all deemed to be inadequate because they had all based their positive opinions on the Veteran's invalid and unsubstantiated report of an inservice head injury. Therefore, because these relied on a likely false factual premise, they will be accorded no probative weight. See Reonal v. Brown, 5 Vet. App. 458 (1993). In conclusion, it is found that, while the Veteran does have a current hearing loss disability, it was not incurred in service, did not manifest to a compensable degree within one year of his separation, and is not related to any injury sustained in service. While the Board has carefully and sympathetically reviewed the Veteran's complaints, there is simply no evidence that the criteria for entitlement to service connection for a bilateral hearing loss disability have been established. As a consequence, the preponderance of the evidence is against a higher rating and the appeal is denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. ORDER Entitlement to service connection for a bilateral hearing loss is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs