Citation Nr: 1752745 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-23 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision rendered by the Department of Veterans Affairs (VA), Regional Office (RO) in Reno, Nevada. The Board remanded the Veteran's claim in May 2014 and April 2017 for additional development. The RO granted the Veteran's claims for entitlement to service connection for tinnitus and pes cavus in an August 2017 rating decision. The Veteran has not perfected an appeal to that decision; as such those claims are not currently before the Board. FINDING OF FACT The Veteran's current bilateral hearing loss did not manifest during active service or to a compensable degree within one year of separation from active service, and the most probative evidence of record shows that the bilateral hearing loss is not etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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, 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued in October 2009 satisfied the duty to notify provisions with respect to the claim for service connection for bilateral hearing loss, and notified the Veteran of the factors pertinent to establish said claim. The record includes service treatment records (STRs), VA and private medical records, and lay statements in support of the claim. The Board has considered the Veteran's statements and has carefully perused the evidence for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The Veteran was provided a VA audiology examination in April 2017 in connection with his claims on appeal, which the Board determined was inadequate. 38 U.S.C.A. § 5103A(d); 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). The Board also finds that there has been substantial compliance with its remand directives in May 2014 and April 2017. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, outstanding VA and private treatment records were obtained and associated with the evidence of record before the Board, and the Veteran was afforded adequate VA examinations in April 2017and his claim was readjudicated by the RO in an August 2017 Supplemental Statement of the Case. Accordingly, the Board finds that VA has satisfied its duties to notify and assist the Veteran under governing laws and regulations. The Board will therefore review the merits of the Veteran's claim. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). While medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1376; see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan, 451 F.3d 1331. The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Analysis The Veteran claims that his bilateral hearing loss is related to noise exposure while working around heavy equipment without hearing protection in service. 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, or 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. In written statements of record and during his March 2012 Board hearing, the Veteran asserted that he was exposed to noise during his active service and noticed the hearing loss since he discharged from the military and stated it has been progressively getting worse. He reported that in-service duties included servicing helicopters and working as a generator mechanic. See March 2012 Board Hearing Transcript. Service treatment records (STRs) did not show any complaints, findings, or diagnosis of bilateral hearing loss. The Veteran's enlistment examination did not show any hearing loss disability. Similarly, the September 1975 separation examination was void of any complaint or documentation of a hearing loss disability. VA treatment records from Sierra VA Healthcare System, dated from November 2004 did not indicate any treatment for a hearing loss disability. Private treatment record from Dr. J.R.R., received in December 2014 states the Veteran was not seen from August 1994 to December 1996, as such no record pertaining to this disability was available. The RO was unable to obtain any treatment record from the Reno VA Medical Center for the period dating from May 2010 through January 2015. Notwithstanding, the Veteran was afforded a VA audiological examination in April 2017. In the April 2017 VA audio examination report, the Veteran indicated that his military noise exposure included helicopters, turbines, jet engines, power generator motors, and trucks. He reported that his occupation after the military was electrician and welder. His recreational noise exposure consists of motorcycles and target shooting. He reported wearing ear protection during his occupational and recreational noise exposure. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 55 50 LEFT 25 25 45 70 65 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 98 percent in the left ear. After review of the claims file and examining the Veteran, the examiner diagnosed bilateral sensorineural hearing loss. She opined that the Veteran's hearing loss was not caused by or even etiologically related to his military service. In the cited rationale, the examiner highlighted that the Veteran's enlistment and separation examination reports showed hearing within normal limits bilaterally with no threshold shift even within the immediate years following his discharged from the military. The only other evidence of record which relates the Veteran's claimed bilateral hearing loss to his active military service are his own statements. These statements are competent evidence as to observable symptomatology, including decreased hearing acuity. See Barr, 21 Vet. App. at 307. However, lay statements that the Veteran's present bilateral hearing loss was as a result of service, to include conceded in-service noise exposure, draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran's bilateral hearing loss falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Moreover, the VA examiner considered the lay assertions of record when providing the aforementioned VA medical opinion in April 2017. The Veteran's current bilateral hearing loss did not manifest during active service or to a compensable degree within one year of separation from active service, and the most probative evidence of record shows that the bilateral hearing loss is not etiologically related to active service. Therefore, the criteria to establish entitlement to service connection for bilateral hearing loss have not been established, either through medical or probative lay evidence. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss, that doctrine is not applicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs