Citation Nr: 1742811 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 10-09 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to December 1981 and from April 1983 to August 1989, with service in Vietnam from November 1968 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran provided testimony at an August 2013 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Virtual VA claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains a copy of the August 2013 hearing transcript and documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. FINDING OF FACT The most probative evidence weighs against a finding that the Veteran's current right ear hearing loss is related to his military service or that it manifested within a year after discharge. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by a letter dated in July 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Next, the duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2016). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). Service treatment records (STRs) and VA medical records have been associated with the claims file in addition to the Veteran's lay statements. The Veteran was also afforded VA examinations for his hearing disability in October 2008, August 2014 and January 2016 with a June 2016 addendum. Additionally, a February 2017 opinion was obtained. Additionally, a September 2017 Disability Benefits Questionnaire regarding hearing loss and tinnitus was associated with the claims file after the most recent supplemental statement of the case and after the case was certified to the Board. See 38 C.F.R. § 20.1304(c) (2016). Although no waiver has been solicited from the Veteran regarding this document, the Board finds that the record is not pertinent as the presence of a right ear hearing loss is not at issue in this case. Accordingly, the Board may proceed to adjudicate this claim without prejudice to the Veteran. Furthermore, the Veteran testified at an August 2013 Board hearing. A VLJ who conducts a hearing must fulfill two duties. 38 C.F.R. § 3.103(c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties 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. Here, during the Board hearing, the VLJ asked questions to ascertain the presence and etiology of his hearing disability. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Furthermore, additional VA opinions were obtained in order to cure any evidentiary deficiency. Additionally, the Board remanded the claim to obtain an etiological opinion. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2016). To establish a right to compensation for a present disability, 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2016). In addition, service connection for certain chronic diseases, including sensorineural hearing loss and tinnitus (organic diseases of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2016); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2016). Although 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. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309 (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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 (2016). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the first two elements of service connection are met. See 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366. The Veteran has a current diagnosis of right ear hearing loss, as noted by the October 2008 VA examination report. The Board further finds that there is evidence of an in-service incident. The Veteran's military occupational specialty was in artillery, which is indicative of noise exposure. However, the presence of a current hearing loss disability and in-service noise exposure does not mandate service connection be granted. Rather, it either must be shown that the military noise exposure caused the hearing loss, or a statutory presumption must apply. The Veteran's STRs contain multiple records regarding the Veteran's right ear hearing acuity. In a February 1975 report of medical examination (RME), the audiogram is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 / 20 In a May 1978 RME, the audiogram is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 / 5 In an August 1978 RME, the audiogram is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 0 A January 1979 audiogram is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 0 In a September 1981 ear, nose, and throat clinic STR, the Veteran was seen for examination due to a perforated left ear drum in Vietnam. It was noted that there the right tympanic membrane (TM) was clear. In a September 1981 report of medical history (RMH), the Veteran reported hearing loss. The notes section noted a history of left perforated TM in 1978. In the corresponding September 1981 RME, the audiogram is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 0 It was noted that there was sensorineural hearing loss, but the audiogram indicates that this was regarding the left ear. In an October 1982 RMH, the Veteran denied hearing loss. An October 1982 audiogram was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 0 0 In a June 1984 STR, it was noted that the Veterans had laceration of the scalp. In an undated note, it was noted that the Veteran had a mild concussion and should be excused from work in August 1984. In an April 1987 RMH, the Veteran denied hearing loss. An April 1987 audiogram was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 5 10 In a March 1989 RMH, it was noted that there was a ruptured TM in Vietnam without sequelae. The Veteran's separation examination in March 1989 reflected normal hearing in his right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 5 There are multiple medical opinions of record with regard to the etiology of the Veteran's right ear hearing loss disability. The Veteran was afforded a VA examination in October 2008. The Veteran reported hearing loss since service. The examiner diagnosed right ear hearing loss, but found it was unrelated to service as there was normal hearing at service discharge. This opinion is inadequate because normal hearing at discharge alone does not preclude a grant of service connection based on a later diagnosis. In an August 2014 VA examination report, the examiner provided a negative nexus opinion. The examiner noted the Veteran's in-service hearing tests were normal and that the threshold shifts were within normal variability. The examiner based the negative opinion on the lack of a diagnosis of hearing loss during service and because several studies found that later-diagnosed hearing loss based on noise exposure was unlikely. This opinion is inadequate because it failed to address the in-service symptoms of an ear infection, or the in-service provisional diagnosis of a perforated ear drum when the Veteran was kicked in the right cheek. A January 2016 VA examination with June 2016 opinion was obtained. The examiner acknowledged the in-service 1971 ear infection but noted that the in-service perforation was of his left ear. The examiner noted that there was bilateral sensorineural hearing loss, but stated that such hearing loss was a loss of an inner ear function and a perforated TM would not interfere with such. He specified that a perforated ear drum might interfere with conductive hearing, but not with sensorineural hearing loss. The examiner addressed the Veteran's 1971 symptoms of ear pain with some bleeding, but noted that there was no documentation of involvement of either TM and all following examinations showed bilaterally intact TMs without evidence of ear infection or trauma. Finally, the examiner made note of the Veteran's 2014 surgical excision of the ceruminal pleomorphic adenoma of the right auditory canal, but found that such did not affect the Veteran's conductive or sensorineural hearing of the ear. The examiner thus concluded that the Veteran's right ear hearing loss was less likely than not related to his in-service TM perforation, cerumen impact with bleeding, or post service right ear adenoma. Thereafter, the Veteran submitted evidence of a study suggesting damage to the inner ear which potentially caused long term hearing loss. As the previous June 2016 etiological opinion had not discussed such study, the Board obtained a VHA opinion in February 2017 considering this evidence, in addition to the Veteran's prior noise exposure, in-service injury of the left eye, and other VA opinions. The opining audiologist acknowledged the Veteran's service treatment records, post service VA treatment and examinations and also studies related to noise exposure causing hearing loss long term. Following a thorough review of the Veteran's claims file, the audiologist opined that it was less likely than not that the Veteran's right ear hearing loss disability was a result of military service, to include noise exposure. The audiologist methodically went through the Veteran's entire medical history relating to his hearing loss. He addressed the Veteran's in service injury of his left ear, finding that it was possible to have an injury affect the hearing of one ear and not the other. He further addressed the previous audiological examinations the Veteran had, summarizing each examination and opinion. The audiologist further addressed the Noise Laboratory at the Central Institute for the Deaf studies referenced by the representative in the September 2016 appellate brief. He found the studies not to be probative, as they were not peer reviewed and he found the study's website had only two salient points to the possibility of noise exposure resulting in later noise injury, neither of which is relevant to the current Veteran. The audiologist also noted that there were no implications of a concussion in 1969, and that the mild concussion in 1984 did not contain any evidence of associated hearing loss or complaints of such. The examiner note that subsequent hearing exams revealed normal and stable hearing acuity. At the outset, with regard to whether the Veteran is entitled to presumptive service connection for his bilateral hearing loss, the most probative evidence of record demonstrates that symptoms of right ear hearing loss was not continuous after service separation, including that hearing loss did not manifest to a compensable degree within one year of service separation. No right hearing loss was "noted" during service. There are no other reports of symptoms or treatment that constitute manifestations sufficient to identify the disease entity and to establish chronicity. See 38 C.F.R. § 3.303(b). Finally, there were no manifestations or diagnosis within one year. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran reported at the 2008 VA examination that he had noticed hearing loss since service discharge, the Board does not find this significantly credible as they conflict with other evidence of record. Significantly, in April 1987 and March 1989 RMHs, the Veteran denied hearing loss. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). Thus, service connection under these provisions is not warranted. The Board finds that the most probative evidence of record demonstrates that the Veteran's right ear hearing loss is not caused by his service, to include the Veteran's left ear injury during service and his noise exposure. The June 2016 and February 2017 opinions were provided upon thorough review of the Veteran's claims file, to include his in service audiograms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Additionally, the examiners provided supporting explanations for their opinions. The Board thus affords significant probative value to these opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that a mere medical conclusion is insufficient to permit the Board to make an informed decision regarding the probative value of that opinion). The Veteran, while entirely competent to report his symptoms of difficulty hearing, is not competent to associate his right ear hearing loss to service. See 38 C.F.R. § 3.159(a)(1) (2016) (providing that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran is not competent to opine on matters such as the etiology of his current right ear hearing loss which is a complex internal audiological disorder not capable of lay observation like other conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("sometimes 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"); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation). Accordingly, the nexus statements offered by the Veteran are not competent evidence. Therefore, right ear hearing loss has not been shown to have onset during service, be related to in-service noise exposure, be manifest to a compensable degree within one year of service separation, or presumed to have been incurred in service. Therefore, service connection for right ear hearing loss is not warranted. ORDER Service connection for right ear hearing loss is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs