Citation Nr: 1606195 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 08-38 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a March 2010 travel Board hearing before the Board. While the matter was pending, the Veterans Law Judge (VLJ) who conducted the hearing retired. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. Because the VLJ who conducted the hearing has since retired, he cannot participate in the adjudication of the Veteran's claim. As such, in December 2015, the Board sent the Veteran a letter requesting that he indicate whether he desired another opportunity to testify at a hearing before the Board before a new VLJ, or if he wanted the Board to proceed with the adjudication of his appeal. The Veteran did not respond to this correspondence. Therefore, the Board will proceed with addressing the appeal. The Board also notes that the Veteran requested a hearing before a Decision Review Officer at the RO, but he withdrew this request in September 2009. When this case was most recently before the Board in June 2014, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. These records were reviewed in connection with the decision below to ensure thorough analysis of the evidence of record. FINDING OF FACT Bilateral hearing loss was not shown in service, or for many years thereafter, and the current bilateral hearing loss is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remand In June 2014 the Board remanded the issue on appeal to afford the Veteran a new examination and readjudicate the claim. The Veteran was afforded a VA examination in July 2014. The claim was then readjudicated in the December 2014 supplemental statement of the case. Thus, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Veterans Claims Assistance Act 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, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In May 2007 the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate his claim and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist, VA has associated with the electronic claims file the Veteran's service treatment records and post-service medical records. The Veteran has been provided VA examinations. The Board finds the most recent July 2014 VA examination was thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed above, in March 2010 the Veteran was provided with a hearing before a VLJ who has since retired. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from The American Legion, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed bilateral hearing loss. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal, and he has done so. Neither the Veteran nor his representative has indicated that there is any additional evidence that should be obtained to substantiate the claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014). 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) (2015). 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) (2015). 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 hearing loss, 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, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). In the instant case, there is no presumed service connection because the Veteran was not diagnosed with a bilateral hearing loss disability within one year of service. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to claims for service connection for a bilateral hearing loss disability, the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 (2015), discussed below, then operates to establish when a hearing loss disability can be service connected. Id at 159. 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, 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 (2015). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The Court has held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. 155, 159. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303; Hensley, 5 Vet. App. at 159-60. Analysis The Veteran filed the instant claim in April 2007, stating that his bilateral hearing loss was caused by his exposure to loud noises from artillery pieces and tanks while serving in the infantry artillery unit. The Veteran also testified before the aforementioned retired VLJ as to the majority of his noise exposure happening in service and to his limited noise exposure post-service, to include working in a plant and hunting. Initially the Board notes that there is no indication of any complaints of hearing loss during the Veteran's active duty service. The audiological examinations during service show that the Veteran did not have any hearing loss as defined by VA. See 38 C.F.R. § 3.385. Regardless, the Veteran's DD Form 214 reflects that he served in the artillery unit, which presumes noise exposure. Considering the circumstances of the Veteran's service, he was likely exposed to noise. This is sufficient to constitute an in-service event for establishing service connection. The evidence of record also establishes a diagnosis of hearing loss during the pendency of this appeal. That is, in the August 2007 VA examination, the Veteran had 40 decibels at the frequency of 4,000 Hertz in the right ear and a speech recognition score of 80 in the left ear. Therefore, the current disability requirement of service connection has been established. The question that remains is whether there is a nexus between the in-service exposure and the current hearing loss. In the aforementioned August 2007 examination, the examiner stated that prior to service, the Veteran was an electrician helper, right-handed hunter (no ear protection used), had chainsaw use with ear protection most of the time, and worked in a textile mill for three months with ear protection. The examiner opined that the claimed condition was less likely as not (less than 50/50 probability) caused by or a result of exposure to 155 artillery and tank fire on the range without ear protection. The examiner stated that the Veteran's claims file was reviewed and showed normal hearing bilaterally on service audiological examinations. The examiner stated that the Veteran's hearing was functionally normal bilaterally. The Veteran submitted statements in April 2008, and with his November 2008 formal appeal, that he did not work in a mill after discharge from service, he used hearing protection when using a saw, did very little hunting, and rarely used a chainsaw. He also stated that he was told that he had hearing loss when discharged from service, and he was not able to use ear protection during his time in the field. A private examination in November 2009 showed that the Veteran reported a significant history of noise exposure related to military service with significant unprotected exposure to artillery. The impression was mild to moderate sensorineural hearing loss as likely as not to have been caused by noise exposure experienced during military service. (The Board notes that the Veteran testified in March 2010 that he gave this examiner his service treatment records.) The Veteran submitted a statement in December 2009 that he had hearing loss when he was discharged from service and that his post-service working conditions were not loud. The Veteran was afforded a VA examination in June 2010 in which the examiner stated that there was no evidence in the military records to support the presence of hearing loss prior to leaving the service; there was no significant change in hearing thresholds from enlistment to separation demonstrated in the available audiograms. The examiner provided detailed information regarding exposure to loud noises and subsequent hearing loss and stated that the normal audiograms at separation could rule out a permanent threshold shift from exposure to loud noise during military service. The Veteran was afforded a VA examination in July 2014 in which the examiner found that there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz for the left or right ear in service. The examiner answered in the negative to the question as to whether hearing loss was at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner noted the Veteran's reports of in-service noise exposure and occupational noise exposure included electrical and maintenance work for many years; however, he reported that this job did not expose him to loud noise even though it was a factory/plant setting. Recreational noise exposure included hunting with no reported use of hearing protection devices. The examiner stated that the service entrance and exit examinations indicated normal hearing, bilaterally. The examiner stated, therefore, there was no objective evidence (i.e. service audiometric results) to support a claim of military-related noise injury (i.e. noise-induced hearing loss) between 1965 and November 1967. The examiner stated that available service treatment records were silent for any complaint, diagnosis, or treatment of claimed condition. Furthermore, the Veteran admitted that he never sought medical follow-up for his hearing until 2007; hearing loss was not noted until 2007 when the Veteran filed his first claim at age 61, which was 40 years after military discharge. The examiner noted that even in 2007, the hearing loss was minimal. Furthermore, the examiner noted that prolonged delay in the onset of noise-induced hearing loss was unlikely based on cited scientific research. It was the examiner's opinion that the Veteran's current hearing loss was more likely due to the natural aging process (presbycusis), and lifetime occupational and recreational noise exposure, rather than military noise exposure. Having reviewed the record, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral hearing loss disability. The Board acknowledges that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is obligated to analyze the credibility and probative value of all evidence, account for the evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. Meyer v. Brown, 9 Vet. App. 425 (1996); Eddy v. Brown, 9 Vet. App. 52 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson, 2 Vet. App. at 618; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Greater weight may be placed on one physician's than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson, 7 Vet. App. 36, 40. Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board finds the opinion expressed in the July 2014 VA examination to be of significant probative value. The opinion was based on a review of the claims file and addressed the Veteran's contentions. Further, a complete and through rationale is provided for the opinion rendered. The reviewer's conclusion is fully explained and consistent with the evidence of record. Consequently, the Board finds the July 2014 medical opinion to be the most probative evidence of record as to whether the Veteran's current bilateral hearing loss disability is related to service. Conversely, the private examiner in November 2009 provided no rationale for the opinion provided. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In fact, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has also considered the Veteran's report of bilateral hearing loss beginning in-service, which suggests the possibility that he has had a continuity of decreased hearing acuity from service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b) (2015), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). Cf. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). That said, while the Veteran is competent to report a continuity of symptomatology, a hearing loss disability for VA purposes is based on whether the level of hearing acuity at multiple frequencies meets the criteria of 38 C.F.R. § 3.385 (2015) to be considered a hearing loss disability for VA purposes. Considering the Veteran's report of bilateral hearing loss beginning in service, but with a lack of audiometric findings until 2007, the Board does not find that the Veteran's lay reports of continuity of symptomatology alone are sufficient to establish entitlement to service connection for a bilateral hearing loss disability in light of the mechanical nature of determining a hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As to the Veteran's general contentions that his bilateral hearing loss disability was incurred in or is otherwise related to his military service, given the Veteran's lack of demonstrated medical expertise, the Board finds that the medical opinions of the competent health care providers to be the most probative evidence of record as to the relationship between the Veteran's current bilateral hearing loss disability and his military service, and the Board is of the opinion that the opinions ultimately outweigh the Veteran's contentions as to etiology. See id.; see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). In summary, a bilateral hearing loss disability was not medically diagnosed until decades after service. The most probative medical opinion of record does not link the Veteran's current bilateral hearing loss disability to service. Moreover, the Board does not find the Veteran competent to diagnose a hearing loss disability for VA purposes based on the provisions of 38 C.F.R. § 3.385 and ultimately finds the Veteran's contentions of a relationship between his current bilateral hearing loss disability and his military service heavily outweighed by the medical opinions of record. The Board concludes that the preponderance of the evidence is against the claim and that service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2015). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs