Citation Nr: 1750180	
Decision Date: 11/06/17    Archive Date: 11/17/17

DOCKET NO.  11-24 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1970 to March 1972.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A transcript of the proceeding is of record.

This claim was last before the Board in November 2014, when it was remanded for further development.  On remand the RO continued to deny the claim, as reflected in a March 2015 Supplemental Statement of the Case (SSOC), so this claim is again before the Board for further appellate review.  There was compliance, certainly the acceptable "substantial" compliance, with the Board's November 2014 remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran's current bilateral (i.e., left and right ear) hearing loss disability is etiologically related to his military service, including especially to any exposure to loud noise and consequent injury (acoustic trauma).


CONCLUSION OF LAW

The criteria are not met for his entitlement to service connection for bilateral hearing loss.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant 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) (2016).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate the claim.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, VA's duty to notify was satisfied by a letter sent to the Veteran in November 2009.  The letter informed him of the evidence required to substantiate the claim, and of his and VA's respective responsibilities in obtaining this necessary supporting evidence.  The letter also advised him of how a "downstream" disability rating and effective date are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, the claim was subsequently readjudicated in the July 2011 Statement of the Case, as well as in additional SSOCs.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate.  Therefore, the Board finds that VA's duty to notify has been satisfied.

Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records, pertinent post-service records, and his contentions.  The Veteran has not identified, nor does the record otherwise indicate, any other evidence relevant to his claim that has not been obtained.  Furthermore, the Veteran was provided with VA compensation examinations in March 2010 and March 2015.  Upon review of the medical evidence, the Board concludes that these medical opinions, collectively, are adequate for the purpose of rendering a decision in this case.  See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Service Connection for Bilateral Hearing Loss

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be probative, i.e., competent and credible evidence showing (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus" or link) between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain "chronic diseases" may be presumed to have been incurred in service if they manifest to a degree of 10 percent or more within one year of the Veteran's separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  This presumption is rebuttable by probative evidence to the contrary.  Id.

When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question.  Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b).  There is no "nexus" requirement for compensation for a chronic disease that was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.  Walker, 708 F.3d at 1336.

Service connection also may be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  In addition, secondary service connection may be found in certain instances when a service-connected disability aggravates another condition, but in this alternative circumstance compensation is limited to the degree of disability attributable to the aggravation (so in other words only that portion above and beyond the disability existing prior to aggravation of the condition).  See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b).

Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.  38 C.F.R. § 3.102.

The determination as to whether these requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its competency and credibility to, in turn, determine its ultimate probative value in relation to other relevant evidence.  38 U.S.C.A. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

The Veteran is claiming entitlement to service connection for bilateral hearing loss, which he contends began as a result of repeated exposure to loud noise during his service and consequent injury (acoustic trauma).  But having carefully considered this claim in light of the evidence of record and applicable law, the Board concludes that the most probative evidence is against this claim, so it must be denied.

The Board will begin by addressing direct service connection.

The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For the purposes of applying the law 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.

In this case, the medical evidence, including the results of the Veteran's VA compensation examination, confirms he has sufficient hearing loss to be considered an actual ratable disability according to this VA regulation - 38 C.F.R. § 3.385.  But to warrant the granting of service connection, there still has to be attribution of this disability to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  And, unfortunately, it is in this equally critical respect that the evidence is less favorable to his claim.

When examined by VA in relation to this claim, the Veteran reported exposure to artillery and missile launches during his service, which the Board accepts as credible evidence of noise exposure in service.  38 U.S.C.A. § 1154(a).  Therefore, the remaining question before the Board is whether the currently-diagnosed hearing loss disability is related to or the result of that conceded noise exposure during his service.

The service treatment records (STRs) are unremarkable for complaints or audiometric findings suggestive of hearing loss.  At the time of the Veteran's August 1969 enlistment examination, no defects were specified with respect to his ears, and audiometric findings were within normal limits with no indication of hearing loss.  Similarly, the January 1972 discharge examination reflects no ear-related defects and audiometric findings again were within normal limits.  But the examination report noted a pure tone threshold of 25 decibels (dB) at 500 Hz in his left ear, which indicates some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (noting the threshold for normal hearing is from 0 to 20 dB and, therefore, higher threshold levels indicate some degree of hearing loss-even if not sufficient hearing loss to be considered an actual ratable disability according to 38 C.F.R. § 3.385).  Yet, despite this finding, a March 1972 examination, so just a short time later, reflects audiometric findings again within normal limits.


In the various reports of medical history the Veteran consistently denied having hearing loss.  Thus, on the whole there is no competent and credible evidence showing a chronic (meaning permanent) hearing loss disability during his service.  Nor is there competent and credible evidence alternatively showing a hearing loss disability (in the way of sensorineural hearing loss, specifically) within the one-year presumptive period after his separation from service.  In fact, to the contrary, hearing loss was first noted many years after his service.  In this regard, after service, a hearing loss disability as defined by VA regulation was not first noted until 2009.  At that time he reported a history of noise exposure in service from artillery noise and machinery noise, as well as noise exposure in his civilian occupational history as a truck driver and forklift operator.

Nevertheless, during the pendency of this appeal, the Veteran has asserted that he has experienced hearing loss symptoms since his separation from service.  Symptoms, not treatment for them, are the essence of any evidence of continuity of symptomatology.  Savage v. Gober, 10 Vet. App. 488, 496 (1997).  In this case, the Veteran's assertions that he has continuously experienced hearing loss symptoms since his active service are considered competent evidence.  Layno, 6 Vet. App. at 469-70.  But after weighing his assertions of continuity of these symptoms since conclusion of his service against the other documentary evidence in the file, suggesting otherwise, the Board finds this latter evidence more credible and, therefore, ultimately more probative on this determinative issue.  For the most part there were normal clinical findings during his separation examination, and the prolonged period after service before the first documented indication of hearing loss tends to disassociate any present-day hearing loss from his service.  38 C.F.R. § 3.303(b).  In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint (much less objective clinical finding) until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a claim, must not be equated with the absence of substantive evidence).  The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

In deciding this claim the Board is discussing the reasons and bases for not accepting the Veteran's lay testimony, though competent, as also credible regarding the extent and duration of his symptoms. And to reiterate, to have probative value concerning this, his lay testimony must be both competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The Board must consider all pertinent evidence, so not just the Veteran's lay assertions regarding the occurrence of the claimed events in service and during the many years since. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). Indeed, in Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997), the Federal Circuit Court explicitly rejected the argument that "the Board must accept the Veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding, instead, that the Board must determine "the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence". In Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009), the Federal Circuit Court similarly held that the Board may properly conclude that unrebutted evidence is insufficient to trigger a presumption, so, here, not just that presumptive service connection is unwarranted absent indication of the condition at issue within the prescribed one-year period immediately following the conclusion of his service, but also that he has not shown entitlement on a direct or facts-found basis, either, simply because he believes there is a correlation between what he is experiencing now and what he claims to have experienced in service.

As the evidence fails to show a chronic hearing loss disability in service or for many years thereafter, the question in this case becomes whether the current hearing loss is otherwise shown to be related to the Veteran's service.  38 C.F.R. § 3.303(d).  The preponderance of the evidence is against this notion also.

The Veteran was afforded a VA audiology examination in March 2010, which confirmed he had sufficient hearing loss to be considered a ratable disability for VA compensation purposes according to 38 C.F.R. § 3.385.  Following the examination, the claims file was made available to the examiner in April 2010 for additional review of the case and comment.  Based on this review, the examiner determined that the Veteran's hearing loss was less likely than not the result of his service.  In support of this determination, the examiner indicated that the audiometric findings from the August 1969 enlistment examination and January 1972 discharge examination were within normal limits, so showing no indication of hearing loss.  The examiner also indicated, however, that the Veteran's March 1972 examination consisted of only whispered-voice testing, which is not an accurate assessment of whether there is high frequency (sensorineural) hearing loss.

In its November 2014 remand, the Board found that VA examiner's opinion to be inadequate for two reasons.  First, the Board noted that the Court has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Second, as discussed above, the Court also has held that the threshold for normal hearing is from 0 to 20 dB and, therefore, higher threshold levels indicate some degree of hearing loss.  Id. (citing Current Medical Diagnosis & Treatment, Stephen A Schroeder et. al. eds., at 110-11 (1988)).  This was not addressed by the VA compensation examiner, necessitating the remand of the claim.

As a result, the Veteran had another VA compensation examination in February 2015, which again confirmed he had sufficient hearing loss to be considered a ratable disability for VA compensation purposes according to 38 C.F.R. § 3.385.  The examiner documented the Veteran's in-service noise exposure as a deck crewman and magazine crewman aboard a destroyer during active combat in Vietnam.  But, again, following review of the evidence of record and examination of the Veteran, the VA examiner concluded that the Veteran's current bilateral hearing loss did not result from acoustic trauma during his service.  

In support of this determination, the examiner discussed the fact that the Veteran's hearing was within normal limits across the range during active duty (except for the 500 frequency mentioned, and then even in just one ear as opposed to both), also however that the Veteran had reported noise exposure additionally as a civilian, so since conclusion of his service, and highlighted the lack of documentation of complaints or treatment for hearing loss before 2009.

Moreover, the examiner indicated that pure tone thresholds recorded at 25dB or better are considered to be within normal limits.  Despite the examination referral stating that Veteran had hearing loss at separation because he had a threshold of 25dB at 500Hz, the examiner emphasized that hearing is considered within normal limits when the hearing levels are at or better than 25dB.  He cited reference to medical literature from the American Speech & Hearing Association in support of this statement.  Consequently, the examiner reiterated that the veteran had hearing within normal limits (25dB or better) across the frequency range of 500-6000Hz for the left ear and the right ear as well.  Furthermore, the examiner indicated that the 25dB threshold noted at 500Hz in the left ear at separation was a temporary finding, which the examiner indicated may have been simply related to a temporary middle ear condition, such as a cold, or simply due to the test being performed with ambient noise present, which can affect low frequency responses.  Lastly, the examiner pointed out that the audiometric findings from the 2010, 2011, and 2015 VA compensation examinations, which were all conducted more than 30 years after separation from service, show the pure tone threshold at 500Hz to be 10/15dB, i.e., within normal limits.

The Board finds the February 2015 VA examiner's opinion that the Veteran's hearing loss is unrelated to in-service noise exposure to be highly probative, because this opinion was based on examination of the Veteran and a thorough review of the claims file.  Moreover, the opinion provided the required explanatory rationale for the ultimate conclusions.  Accordingly, this opinion is entitled to a lot of probative weight, especially absent any indication to the contrary.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).

Regarding the determinative issue of etiology of the hearing loss, the Board is giving more probative weight to the VA examiner's opinion than to the Veteran's lay assertions to the contrary.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

This claim of entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs