Citation Nr: 1637464 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 10-40 663A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The New York, New York, RO has jurisdiction of the current appeal. The Board has reviewed both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to ensure a total review of the evidence. In February 2014, the Board remanded the issue on appeal to the Agency of Original Jurisdiction (AOJ) in order to obtain outstanding VA or private treatment (medical) records, as well as provide the Veteran with a VA examination. Upon remand, the AOJ obtained additional VA treatment records and provided the Veteran with VA examinations in April 2014 and August 2014. Therefore, the Board finds that the AOJ substantially complied with the February 2014 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The February 2014 Board decision also remanded the issue of service connection for left varicocele for additional development. A September 2014 rating decision granted service connection for left varicocele, which constitutes a full grant of the benefit sought on appeal with respect to this issue. Accordingly, the issue of service connection for left varicocele is not before the Board on appeal. FINDING OF FACT The Veteran does not have bilateral hearing loss to a disabling degree for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the claim for service connection for bilateral hearing loss, in a March 2009 notice letter sent prior to the initial denial of the claim later in May 2009, the RO notified the Veteran about the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. As to the duty to assist, the Board finds that VA has satisfied its duties to assist the Veteran. VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, relevant VA examination reports, and the Veteran's written statements. VA will also provide a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Veteran was afforded VA audiology examination in April 2014 and August 2014. The Board notes that the adequacy of the VA examination was questioned by the Veteran's representative in a June 2016 written brief. As explained below, the Veteran did not cooperate with the VA examiners and had poor response reliability during both VA examinations. Because of the Veteran's failure to cooperate in the VA examinations, VA was unable to develop potentially favorable evidence of a current bilateral hearing loss disability for VA compensation purposes, or a medical nexus opinion relating any current bilateral hearing loss to service. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not always a one-way street, or a blind alley, and that a veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting the claim). For these reasons, including the failure to cooperate and reliably participate in the VA examinations, the Board finds that no further action is necessary to meet the requirements of the VCAA, and the Board will decide the claim based on the evidence that is of record. See 38 C.F.R. § 3.655 (2015). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection for Bilateral Hearing Loss Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (1) the existence of a present disability; (2) 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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Symptoms such as pain, by itself, without an underlying medical condition, do not constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, sensorineural hearing loss, which are organic diseases of the nervous system, are "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a) apply to the claim for service connection for bilateral hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and sensorineural hearing loss (as an organic disease of the nervous system) becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. In rendering a decision on appeal, the Board must also 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. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran generally contends that service connection for bilateral hearing loss is warranted because hearing loss started during active service in 1969. The Veteran asserted that he noticed hearing loss in service, and that hearing loss has worsened since service. See January 2009 VA Form 21-526; April 2009 VA Form 21-4138. The Board finds that the weight of the evidence is against finding that the Veteran was exposed to acoustic trauma (loud noise) in service. The Veteran does not allege that he was exposed to loud noise in service. The DD Form 214 shows that the Veteran's military occupational specialty was unit supply specialist, which is associated with a low probability of hazardous noise exposure. See Veterans Benefits Administration (VBA) Fast Letter 10-35 (September 2, 2010) (modifying the development process in claims for hearing loss and/or tinnitus). While the Veteran was placed on physical profile in January 1970 due in part to mild hearing loss, service treatment records do not otherwise show complaints, diagnosis, or treatment for hearing loss. The December 1970 report of medical history at service separation shows that, while the Veteran report ear, nose, and throat trouble, the Veteran denied current symptoms or a history of hearing loss. Moreover, comparing the December 1970 audiogram at service separation to the April 1968 audiogram at service entry does not appear to show a permanent threshold shift in hearing. The Board finds that the Veteran does not have bilateral hearing loss to a disabling degree for VA compensation purposes that meets the criteria at 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between the current hearing loss and a disability or injury suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992) In this case, the Veteran was provided with two VA audiology examinations in April 2014 and August 2014; however, the Veteran did not cooperate with the VA examiners and provided unreliable responses which prevented the VA examiners from recording accurate audiometric numbers. Specifically, the April 2014 VA examiner noted that the Veteran's current hearing sensitivity could not be determined given the Veteran's poor response reliability during the examination. The April 2014 VA examiner indicated that pure tone responses were unreliable and could not be replicated. While the pure tone responses improved with reinstruction, the April 2014 VA examiner noted that word recognition testing responses were obtained with poor reliability in that the Veteran did not respond to half the words and that responses were atypical. Accordingly, the April 2014 VA examiner concluded that the examination was inadequate for rating purposes and recommended another examination with a different VA examiner. As such, the Veteran was provided with another VA audiology examination in August 2014. The August 2014 VA examiner could not provide audiometric numbers because pure tone responses were unreliable and could not be replicated. The August 2014 VA examiner noted that half word responses were given, which were not in agreement with pure tone averages. The August 2014 VA examiner also indicated that there was no change in performance after reinstruction. Accordingly, the August 2014 VA examiner determined that no information and statement regarding the Veteran's current hearing sensitivity could be determined given the Veteran's poor response reliability during the examination. The August 2014 VA examiner concluded that the examination is not adequate for rating purposes. VA treatment records do not otherwise show bilateral hearing loss for VA compensation purposes. Based on the foregoing, the Board also finds that during the April 2014 and August 2014 VA examinations the Veteran showed poor effort in attempting to show artificial hearing loss so as to obtain VA compensation for bilateral hearing loss, which undermines his credibility as to the presence of a current hearing loss. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Wood, 1 Vet. App. 190. Neither examination contains findings that would establish the presence of a current bilateral hearing loss disability for VA purposes. Because the evidence does not show bilateral hearing loss is to a disabling degree according to 38 C.F.R. § 3.385, the weight of the evidence demonstrates that the Veteran's bilateral hearing loss has not met the threshold to establish current hearing loss "disability," and the claim must be denied. The United States Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." See Brammer, 3 Vet. App. at 225; see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Because the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs