14-06 381
14-06 381
Board of Vet. App.Sep 27, 2017Background
- Veteran served on active duty from August 1963 to August 1965 as a radio carrier operator; conceded in-service noise exposure.
- Claim for service connection for bilateral hearing loss denied by VA Regional Office in July 2012; appeal to Board of Veterans' Appeals followed.
- Veteran has a current diagnosis of bilateral sensorineural hearing loss (VA exam August 2013). Separation and service treatment records show normal audiograms and no in-service complaints.
- VA provided notice and assistance; VA examiners (May 2012, August 2013) rendered negative nexus opinions, with the August 2013 opinion found adequate and explaining no scientific basis for delayed-onset acoustic trauma.
- Veteran and spouse provided lay statements describing progressive hearing difficulty since service, but lacked medical nexus evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct service connection (causal nexus) | Veteran: hearing loss was caused by in-service noise exposure (radio operator, artillery, tanks, small arms). | VA: preponderance of evidence (including 2013 VA exam) shows no nexus; separation audiogram normal and no scientific basis for delayed-onset acoustic trauma. | Denied — no causal nexus; 2013 VA opinion outweighs lay assertions. |
| Presumptive service connection (chronic disease / 1-year manifestation) | Veteran: hearing loss is a chronic disease that manifested from service or shortly after. | VA: STRs show normal induction and separation exams; first compensable evidence appears decades after service. | Denied — no showing of manifestation to compensable degree within one year or continuity of symptomatology. |
| Adequacy of VA notice and assistance | Veteran: (implicit) procedures satisfied to develop claim. | VA: complied with VCAA notice and duty to assist; provided adequate exams and obtained records. | Held — VA met duty to notify and assist; August 2013 exam adequate. |
| Benefit-of-the-doubt rule application | Veteran: doubt should favor claimant because of lay reports. | VA: preponderance of evidence is against claim, so benefit-of-the-doubt not triggered. | Held — not applicable because evidence preponderates against the claim. |
Key Cases Cited
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.) (elements required for service connection)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (service-connection principles)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (limits of lay competency to provide medical nexus)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (weight of lay evidence and contemporaneous medical evidence)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (continuity of symptomatology standard)
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VCAA notice principles referenced)
- Maxson v. West, 12 Vet. App. 453 (Vet. App.) (negative inference from long absence of complaints/treatment)
- Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir.) (standard on benefit-of-the-doubt application)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt standard)