Citation Nr: 1752695 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-27 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a rating in excess of 20 percent for fibromyalgia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1968 to February 1970. This matter is before the Board of Veterans'Appeals (Board) on appeal from a July 2008 rating decision by the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). In March 2013 a Travel Board hearing was held before a Veterans Law Judge (VLJ) who has since retired. In November 2013 the case was remanded for additional development. In June 2014 the Veteran was offered, and accepted, the opportunity for another hearing before a VLJ who would decide his appeal. In September 2015, a videoconference hearing was held before the undersigned. Additional evidence (private treatment records) was submitted at the hearing; such evidence and a transcript of the hearing have been associated with the Veteran's record. In March 2016 and June 2017 this matter was remanded for additional development. [The matter of service connection for fibromyalgia was also on appeal before the Board. An August 2017 rating decision granted service connection for fibromyalgia, resolving that issue. As is noted in the REMAND below, the Veteran's representative expressed disagreement with the rating assigned.] The issue seeking an increased rating for fibromyalgia is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT A hearing loss disability was not manifested in service; sensorineural hearing loss (SNHL) was not manifested within one year following the Veteran's separation from service; and his current bilateral hearing loss is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C. §§ 5103 and 5103A (2012) have been met. December 2007 VA correspondence notified the Veteran of the information needed to substantiate and complete this claim, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records are associated with the record. The RO arranged for VA examinations in May 2008 and December 2013, March 2016, and August 2017 (pursuant to the Board's remands. The Board finds the opinions offered, particularly on August 2017 examination, adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. § 3.103(c)(2) requires a Veterans Law Judge who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the September 2015 hearing before the undersigned the issues on appeal were identified, and explanation was provided regarding what evidence is needed to substantiate the claims; further development to be completed was identified. A deficiency in the conduct of the hearing is not alleged. The Board finds that there has been compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include SNHL, as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for SNHL). 38 U.S.C. §§1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. Competent medical evidence may 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). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. For VA compensation purposes, a hearing loss disability is defined as: "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, 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. 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 for such disability to be granted. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A claimant who seeks to establish service connection for a hearing loss disability must show, as required with any claim of service connection, that a current hearing disability is the result of an injury or disease incurred in service. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that his bilateral hearing loss resulted from exposure to hazardous levels of noise during service. His DD 214 reflects that his MOS was a mechanic. Audiometry on January 1968 service entrance examination found that the puretone thresholds, in decibels, were: 500 1000 2000 4000 R 5 0 5 25 L -5 10 5 15 The Veteran's STRs are silent for complaints or findings pertaining to hearing loss. He denied hearing loss in a February 1970 report of medical history. Audiometry on February 1970 service separation examination found that puretone thresholds were: 500 1000 2000 4000 R 5 10 0 15 L 10 10 0 15 August 1998 VA treatment records note that the Veteran was being followed annually for a predominately symmetrical SNHL and cited to March 1997 audiometry. [A June 2016 letter from the RO requested the March 1997 audiometry report, but the response received indicated that they could not be located]. January 2005 VA treatment records note that the Veteran reported that a private hearing assessment ten years had revealed he was not yet a hearing aid candidate. He reported that he had trouble hearing soft voices and had to turn TV volume up loud. He related that after separation from service he ran machines at a factory for two years without hearing protection, served as a volunteer fireman, and towed cars. He denied recreational noise exposure. The diagnosis was bilateral hearing within normal limits from 250-1500 Hz sloping to a moderate SNHL from 2000-4000 Hz and rising to a mild SNHL at 6000 Hz. On May 2008 VA audiology examination, the Veteran reported that during service he was exposed to noise from heavy equipment and trucks. He was a mechanic and did not wear ear protection. He reported difficulty hearing female and soft voices and difficulty understanding speech with background noise present. Audiometry revealed that puretone thresholds, in decibels, were: 1000 2000 3000 4000 R 10 50 55 60 L 15 50 60 60 Speech audiometry revealed speech recognition ability of 94 percent in each ear. The diagnosis was bilateral SNHL. The examiner noted that the Veteran's separation audiometry found normal hearing in both ears. The examiner also noted that an Institute of Medicine (IOM) study (National Academy of Sciences 2006) found there is no scientific basis for delayed or late onset noise induced hearing loss, and opined that the Veteran's hearing loss was not caused by or a result of noise exposure in the military At the March 2013 Travel Board hearing, the Veteran's spouse testified that she had to speak a lot louder to him once he returned from service. He testified that he was a light wheel mechanic in service, and worked in a closed shop without hearing protection. He reported working after service as a roofer and tow truck driver. He had a hard time understanding soft spoken voices. On December 2013 VA audiology examination, the Veteran reported that he had trouble understanding conversation in crowds and on the TV. Audiometry revealed that puretone thresholds, in decibels, were: 1000 2000 3000 4000 R 30 60 65 65 L 25 65 65 65 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 86 percent in the left. The diagnosis was bilateral SNHL. The examiner noted that the Veteran's enlistment and separation audiometry showed his hearing to be within normal limits. No puretone threshold shifts was noted from enlistment to separation. The examiner, citing the Institute of Medicine 2006 study, opined stated based on objective evidence (the audiograms at enlistment and separation) it makes it less likely as not that the Veteran's current hearing loss is due to or a result of noise exposure service. At the September 2015 videoconference hearing before the undersigned, the Veteran's spouse testified that after he came home from service his hearing gradually became worse, and she would have to speak loud to him. The Veteran testified that during service he worked in an enclosed shop as a mechanic without hearing protection, and worked as a roofer without hearing protection for several years after service. On July 2016 VA audiology examination, the Veteran reported that he worked as a tow truck driver, and had trouble hearing a person who sat in the cab with him. He reported that he had to turn up the TV very loud. He reported that he first noticed difficulty hearing approximately five years following separation from service. He was unable to specify a specific incident or circumstance of onset of hearing loss. He denied a familial history of hearing loss, outer/middle ear pathology or surgery, and true vertigo. Audiometry revealed that puretone thresholds, in decibels, were: 1000 2000 3000 4000 R 45 70 65 70 L 30 70 65 65 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 96 percent in the left. The diagnosis was bilateral SNHL. The examiner opined that it was less likely than not that the bilateral hearing loss was incurred in or caused by service. She noted that audiometry on service entrance examination showed normal hearing in the left ear at all test frequencies, and normal hearing at all frequencies except for a mild loss at 4,000 Hertz in the right. She observed that at service discharge hearing in both ears was within normal limits. She further opined that the Veteran's puretone thresholds on January 1968 (induction audiogram) and on February 1970 (separation audiogram) were within test-retest reliability, and according to OSHA standards there was no standard threshold shift in the right or left ear, at any frequency. Thus, there was no standard threshold shift to be considered for rating purposes and no objective evidence of noise injury in the right or left ear. On August 2017 VA audiology examination, the Veteran reported that during service he was exposed to noise from trucks and track equipment without the benefit of hearing protection. He reported that he worked as a roofer for 30 years after discharge from service and did not wear hearing protection. He reported that he rode motorcycles without hearing protection for 30 to 40 years. He first noticed his hearing difficulties approximately 20 years prior to the examination. He was unable to specify a specific incident or circumstance of onset of hearing loss. He denied a familial history of hearing loss, outer/middle ear pathology or surgery, and true vertigo. Audiometry revealed that puretone thresholds, in decibels, were: 1000 2000 3000 4000 R 45 70 70 75 L 30 65 65 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left. The diagnoses were right ear SNHL and left ear mixed hearing loss. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was incurred in or caused by service. The examiner noted that audiometry on service entrance examination showed normal hearing in the left ear at all test frequencies, and normal hearing at all frequencies except for a mild loss at 4,000 Hertz in the right. She observed that on service discharge hearing in both ears was within normal limits. She further opined that the Veteran's hearing thresholds obtained on January 1968 (induction audiogram) and on February 1970 (separation audiogram) were within test-retest reliability, and according to OSHA standards there was no standard threshold shift in the right or left ear, at any frequency. Thus, there was no standard threshold shift to be considered for rating purposes and no objective evidence of noise injury in the right or left ear. She explained that the Veteran had a long-standing history of recreational noise exposure, which is a strong intervening cause for the current bilateral hearing loss, and reported first noticing hearing loss twenty years prior to the examination (in approximately 1997, which is over twenty years after service separation). Postservice treatment records do not include any further opinions regarding the etiology of the Veteran's hearing loss and tinnitus. It may reasonably be acknowledged that by virtue of his duties in service the Veteran was exposed to hazardous levels of noise therein. It is also not in dispute that the Veteran now has a bilateral hearing loss disability (as defined in 3.385); hearing loss disability was found on VA examination. What remains necessary to substantiate this claim is competent evidence that the current bilateral hearing loss disability is etiologically related to the Veteran's service/noise trauma therein. Whether or not that is so is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A hearing loss disability was not manifested in service, and service connection for such disability on the basis that it became manifest in service and has persisted is not warranted. As SNHL was not manifested in service or in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 do not apply. As SNHL is listed as a chronic disease in 38 C.F.R. § 3.309(a)(as organic disease of the nervous system) for consideration is whether or not service connection for this disability may be established by showing continuity of symptomatology. Continuity of symptomatology of hearing loss disability is not demonstrated by the evidence in the record. The Veteran did not report a hearing loss on February 1970 separation examination. Notably, the Veteran is not competent to establish continuity of a SNHL disability by his own recollections or remote events; hearing loss disability is defined by governing regulation and must be demonstrated by specified testing. See 38 C.F.R. §§ 3.385, 4.85. There is no documentation in the record of hearing loss disability established by the specified testing until many years after service. Of itself such lengthy postservice interval during which no hearing disability was shown is a factor for consideration weighing against a finding of continuity. The Board finds that continuity of hearing loss symptomatology is not shown. Therefore, service connection for bilateral hearing loss based on continuity of symptomatology is not warranted. What remains for consideration is whether or not the Veteran's hearing loss is otherwise shown to be etiologically related to his service. Whether or not a current hearing loss disability may be related to remote service/events, to include exposure to noise therein, is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation (other than by observation of continuity of complaints, which the Board has found is not shown). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's hearing loss and tinnitus and his service is in the reports of the VA examinations and opinions discussed above. The Board finds that the August 2017 examination report and opinion to be entitled to substantial probative weight. The examiner reviewed the Veteran's medical history and included adequate rationale for the conclusions reached, citing to accurate factual data (including that a puretone threshold shift in service was not shown), explaining that the Veteran had a long history of recreational noise exposure, which was a strong intervening cause for the hearing loss, and noting that the Veteran reported first noticing hearing loss several years after separation from service. The Veteran has not submitted any medical opinion to the contrary. His lay assertions that his hearing loss is related to service are not competent evidence in this matter. Laypersons are competent to provide opinions on some medical issues. However, as was noted, without evidence of continuity, etiology of hearing loss disability is a matter outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran does not cite to supporting medical opinion or medical literature evidence. In summary, the evidence of record establishes that a hearing loss disability in either (or both) ear(s) was not manifested in service or in the first postservice year; that continuity of hearing loss symptomatology is not shown; and that such disability is not otherwise shown to be etiologically related to the Veteran's service to include as due to acknowledged exposure to noise trauma therein. The preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. ORDER Service connection for bilateral hearing loss is denied. REMAND Regarding the matter of the rating for fibromyalgia, an August 2017 rating decision awarded service connection for such disability and assigned a 20 percent rating, effective August 31, 2007. Correspondence from the Veteran's representative received in October 2017 expresses disagreement with the rating assigned. As the AOJ has not issued a statement of the case (SOC) in this matter, the Board is required to remand the matter for issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not now before the Board, and will be before the Board only if the Veteran timely files a substantive appeal after a SOC is issued. Accordingly, the case is REMANDED for the following : The RO should issue an appropriate SOC addressing the matter of the rating for fibromyalgia. The Veteran and his representative should be advised of the time limit for perfecting an appeal in the matter, and afforded opportunity to do so. If he timely perfects an appeal in the matter, it should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs