10-29 598
10-29 598
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served on active duty Dec 1978–Feb 1980 as an aircraft support specialist; claimed post-service bilateral hearing loss from flight-line noise exposure.
- Service records (including separation exam) showed normal hearing in service and a December 1979 denial of hearing loss.
- VA obtained records, VA exam (Apr 2013) diagnosing bilateral sensorineural hearing loss and opining it was less likely than not related to service; Social Security and VA treatment records were associated later.
- Veteran testified at a 2012 Board hearing and submitted lay statements asserting noise exposure caused his hearing loss.
- Board remanded neuropathy (feet) claim for further development; that issue remains remanded.
- On appeal, Board found preponderance of evidence against service connection for bilateral hearing loss and denied the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for bilateral hearing loss | Veteran: hearing loss caused by in-service acoustic trauma while on flight line | VA/RO: no in-service hearing loss, separation audiogram normal; VA exam found no nexus to service | Denied — preponderance of evidence shows hearing loss not related to service |
| Presumption of service connection based on manifesting within one year of discharge | Veteran: (implied) loss related to service; hoped for presumption | VA: no diagnosis or compensable hearing loss within one year after discharge | Not applicable — no evidence of hearing loss within one year, so presumption not satisfied |
| Competency of lay evidence to establish etiology | Veteran: lay statements tie symptoms to service noise exposure | VA: etiology of sensorineural hearing loss requires medical expertise | Board: lay statements of etiology are of low probative value; medical opinion required |
| Compliance with VA duties to notify and assist | Veteran: received notice and had hearing; records/ exams requested | VA: provided July 2009 notice, remands performed, adequate April 2013 exam, records obtained | Board: VA satisfied notice and assistance duties for hearing-loss claim |
Key Cases Cited
- Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (post-adjudication corrective notice can cure prior notice error)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (elements for service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay testimony competency principles)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology under 38 C.F.R. § 3.309)
- Bryant v. Shinseki, 23 Vet. App. 488 (Veterans Ct. 2010) (VLJ duties at hearings to explain issues and suggest evidence)
- Stegall v. West, 11 Vet. App. 268 (Vet. App. 1998) (requirement of substantial compliance with remand directives)
- Kahana v. Shinseki, 24 Vet. App. 428 (Vet. App. 2011) (medical expertise required for etiology opinions)
- Hensley v. Brown, 5 Vet. App. 155 (Vet. App. 1993) (benchmarks for normal hearing thresholds)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App. 2008) (medical opinions must be fully articulated and reasoned)