Citation Nr: 1756827	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO. 14-13 932	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

Entitlement to service connection for bilateral hearing loss. 

Entitlement to service connection for irritable bowel syndrome (IBS). 



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel


INTRODUCTION

The Veteran had active military service from May 1970 to September 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2017. A transcript of the hearing has been associated with the claims file.


FINDINGS OF FACT

1. The Veteran's bilateral hearing loss is not shown to be causally or etiologically related to an in-service event, injury or disease.

2. The Veteran's IBS did not manifest in-service, and is not shown to be causally or etiologically related to an in-service event, injury or disease.


CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 

2. The criteria for service connection for IBS have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and to Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. 

In this case, VA satisfied its duty to notify the Veteran by way of March 2011 and August 2011 letters. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice. Accordingly, the VA satisfied its duty to notify. 

In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issues on appeal. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examination in February 2012. Based on the examination and the records, VA medical examiners were able to provide adequate opinions. Accordingly, the Board determines that VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. 

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.

II. Service Connection

Generally, to establish service connection 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). 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). 
Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include hearing loss, manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.385. For hearing loss, the disease must have manifested to a degree of 10 percent or more within one year of separation from service. 38 C.F.R. § 3.307(a)(3).

Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id.

To establish the presence of hearing loss for VA compensation purposes, the Veteran has to show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

A. Bilateral Hearing Loss

At the outset, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. As such, the first element of service connection is met. The Board also concedes that the Veteran was exposed to some degree of noise during active service while working in the boiler room without hearing protection. Therefore the second element of service connection has been met. What remains for consideration is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure.

The service treatment records note normal ears and drums with no complaints, symptoms, signs, or diagnoses of bilateral hearing loss except for a one-time incident of earache in the left ear. In general, the service records show the Veteran affirmatively denied any ear- or drum-related trouble while in service. The audiographs conducted at induction and separation revealed normal findings. 

Post-service outpatient treatment records show that the Veteran complained of decreased hearing acuity in 2001, about twenty-five years after service. In a November 2010 audiometric examination, the Veteran had moderate sensorineural hearing loss in the right ear at 3000/4000 Hertz, and severe and profound sensorineural hearing loss in the left ear at 3000/4000 Hertz. The Veteran was recommended for hearing aids.

Then in February 2012, the Veteran underwent an in-person examination with a VA examiner. The Veteran was diagnosed with sensorineural hearing loss. Despite the significant hearing loss in his ears, the VA examiner, a doctor of audiology, opined that due to the Veteran's normal audiological testing during induction and at separation, and the fact that the in-service records generally show no complaints or treatment for the claimed condition, the Veteran's bilateral hearing loss is less likely than not caused by or a result of military noise exposure. 

The Board finds that the VA examiner's opinion is adequate because the examiner thoroughly reviewed and discussed the relevant evidence, personally examined the Veteran, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the VA examiner's opinion is competent, credible, and persuasive and assigns it high probative weight. 

In regards to direct service connection, the Board finds the Veteran's bilateral hearing loss does not meet the standards for direct service connection as the preponderance of the evidence supports a finding that there is no medical nexus between active service and the current disability. The records show that the Veteran has a current diagnosis of bilateral hearing loss. Although the service treatment records are generally silent for any complaints, symptoms, or diagnosis of bilateral hearing loss during his active service, the Board finds that the Veteran was exposed to some degree of noise while working in the boiler room. However, considering the fact that the service treatment records show the Veteran had normal ears and drums and the audiographs of the Veteran's bilateral ears were normal at induction and separation, the Board finds no medical evidence of a nexus between the bilateral hearing loss and the in-service injury. Accordingly, service connection based on in-service occurrence is not warranted. 

As for presumptive service connection based on chronic disease, the Board finds the preponderance of the evidence does not support a finding that the Veteran's bilateral hearing loss, a chronic disease, manifested to a compensable level in the first post-service year . 38 C.F.R. § 3.309(a). Based on the records, the Veteran's bilateral hearing loss was first documented in 2001, more than twenty-five years after his service. As there is no evidence of manifestation within the first post-service year, service connection for bilateral hearing loss based on the presumption in favor of chronic disease is not warranted in this case. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. 

In regards to presumptive service connection based on continuity of symptomatology, the Board finds the preponderance of the evidence does not show that the Veteran experienced signs and symptoms of bilateral hearing loss on a continuous basis. For instance, service treatment records show no occurrence of symptoms or signs associated with hearing loss except for a one-time incident of earache. In fact, based on the records, the Veteran first mentioned hearing deficits in 2001, which is over twenty-five years after service. As the records do not show a continuity of symptomatology, the Veteran's bilateral hearing loss cannot be presumptively service connected. 

The Board acknowledges the Veteran's lay statement that military noise exposure caused his bilateral hearing loss. However, such an opinion of nexus requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); 38 C.F.R. § 3.307(a)(6)(i). As stated above, the Veteran's service treatment records show normal ears and drums with normal audiographs at service separation, and his post-service records show no hearing deficits until 2001, over twenty-five years after service. Thus, the Board finds there is no competent and credible evidence of record to provide a nexus between the Veteran's bilateral hearing loss and service. 

In conclusion, although the Veteran has established a current disability and in-service incurrence, the preponderance of the evidence establishes that his bilateral hearing loss was not manifested during service or for many years thereafter; and is not otherwise related to his active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

B. IBS

After a review of the record, the Board finds the Veteran's IBS does not meet the standards for direct service connection as the preponderance of the evidence supports a finding that there was no in-service incurrence of a disease or injury, and no medical nexus between active service and the current disability has been established. 

Although the records show that the Veteran has a current diagnosis of IBS, the service treatment records in general are silent for any chronic or systemic complaints, symptoms, or diagnoses of IBS during his actual service. The service treatment records note of stomach cramps, diarrhea, and spitting up blood in June 1970, July 1970, and April 1972. Except for these three incidents, the service treatment records show no complaints, symptoms, signs, or diagnoses of IBS. In addition, the Veteran affirmatively denied any stomach trouble, gastrointestinal trouble, or indigestion at induction and separation. 

Post-service outpatient treatment records show that the Veteran has a long history of complaints of constant abdomen pain and chronic diarrhea. In the February 2012 VA examination, the examiner opined that the Veteran's IBS was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that except for the three occasions as noted above, there are no further notes regarding any gastrointestinal symptoms. Further, in the separation examination, there was no note of any gastrointestinal issues. In fact, the treatment records note that the Veteran did not seek care for his IBS until around 1998, about twenty years after service. As such, the examiner opined that the Veteran's IBS was less likely than not manifested in service. 

The Board finds that the VA examiner's opinion is adequate because the examiner thoroughly reviewed and discussed the relevant evidence, personally examined the Veteran, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the VA examiner's opinion is competent, credible, and persuasive and assigns it high probative weight. 

The Board acknowledges the Veteran's lay statements, as well as the testimony of his wife at the October 2017 hearing, in regards to the Veteran's IBS. The Board concedes that the Veteran has gastrointestinal issues. However, an opinion of nexus requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); 38 C.F.R. § 3.307(a)(6)(i). As stated above, despite some symptoms of gastrointestinal issues during service, the Veteran was never formally diagnosed with any gastrointestinal condition during service. Further, the post-service treatment records note that the Veteran first sought care for his IBS around 1998, about twenty years after service. Prior to this 1998 record, there is no evidence of any treatment for or diagnosis of IBS. Further, the VA examiner considered the Veteran's contentions in rendering the February 2012 opinion. Thus, the Board finds that the weight of the competent and credible evidence of record does not provide a nexus between the Veteran's IBS and service.  

As a final matter regarding the Veteran's reports regarding continuity of symptomatology, the Board notes that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Irritable bowel syndrome is not a disability identified in the relevant regulation. Thus, entitlement to service connection on the basis of continuity of symptomatology since service is not warranted under that theory of entitlement.

Reasonable doubt has been resolved in the Veteran's favor where applicable, but the preponderance of the evidence is against service connection; the claim must be denied. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.



ORDER

Entitlement to service connection for bilateral hearing loss is denied. 

Entitlement to service connection for irritable bowel syndrome is denied. 



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs