Citation Nr: 1413640 Decision Date: 03/31/14 Archive Date: 04/08/14 DOCKET NO. 10-24 231 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss to include sensorineural hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from June 1956 to June 1960 and additional periods of active duty for training with the Marine Corps Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Houston, Texas, Regional Office (RO) which denied service connection for bilateral hearing loss. In October 2012, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. In November 2012, the Board remanded the Veteran's appeal to the RO for additional action. In November 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in otolaryngology. In December 2013, the requested VHA opinion was incorporated into the record. In December 2013, the Veteran and his accredited representative were provided with a copy of the VHA opinion. The Veteran did not subsequently submit additional evidence or argument. The Board has reviewed the physical claims file and both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. The Board has reframed the issue on appeal as entitlement to service connection for bilateral hearing loss to include sensorineural hearing loss in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). FINDINGS OF FACT 1. The Veteran did not manifest bilateral sensorineural hearing loss or chronic symptoms of sensorineural hearing loss during active service. 2. Symptoms of sensorineural hearing loss were not continuous since service separation; did not manifest to a compensable degree within one year of service separation; and were first clinically manifested in 2002, some 42 years after service. 3. The Veteran has a current disability of bilateral sensorineural hearing loss. 4. Bilateral hearing loss did not begin during service and is not related to active service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service and sensorineural hearing loss disability may not be presumed to have originated during such service. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a), 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In Dingess v. Nicholson, 19 Vet. App. 473(2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA has issued several VCAA notices to the Veteran including a February 2009 notice which informed him of the evidence generally needed to support a claim of service connection and the assignment of an evaluation and effective date for an initial award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. The February 2009 VCAA notice was issued to the Veteran prior to the April 2009 rating decision from which the instant appeal arises. The Veteran's claim was readjudicated in the May 2010 statement of the case and the July 2013 supplemental statement of the case issued to the Veteran. Therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. The Veteran was afforded multiple VA audiological evaluations. The examination reports are of record. The Board requested a VHA otolaryngology opinion. The opinion was incorporated into the record and provided to the Veteran. To that end, when VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2013 VHA opinion reflects that all relevant records were reviewed and the questions posed were answered. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. II. Service Connection for Bilateral Hearing Loss The Veteran asserts that service connection for bilateral hearing loss is warranted as the claimed disorder arose secondary to his in-service noise exposure including that associated with gunfire and grenade explosions during his periods of active duty for training with Marine Corps Reserve. Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131. Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The claimed disorder, bilateral sensorineural hearing loss, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system including sensorineural hearing loss becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). After a review of all the evidence, the Board initially finds that the weight of the evidence demonstrates that the Veteran did not sustain chronic sensorineural hearing loss or other recurrent hearing loss disability during active service. While the Veteran exhibited a minimal reduction in auditory acuity represented by a right ear pure tone threshold of 25 db at 500 Hz at his May 1960 physical examination for service separation, such a finding has not been determined by any health care professional to represent the onset of a recurrent hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the Court, citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988)), directed that the threshold for normal hearing is from 0 to 20 dB and higher threshold levels indicate some degree of hearing loss.) The report of his April 1956 physical examination for service entrance conveys that the Veteran exhibited bilateral auditory acuity of 15/15. Auditory acuity of 15/15 is normal. Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). The report of the May 1960 physical examination for service separation conveys that the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 15 - 20 LEFT 20 10 15 - 20 It should be noted that pure tone thresholds have been converted from American Standards Association (ASA) units to International Standards Organization (ISO) units (service department audiometric readings prior to October 31, 1967, must be converted from ASA units to ISO units). At the October 2012 Board hearing before the undersigned Veterans Law Judge, the Veteran testified that he believed that his hearing loss disability was a result of his in-service noise exposure. He did not contend that it became manifest during active service. The Board next finds that symptoms of sensorineural hearing loss were not continuous since service separation; did not manifest to a compensable degree within one year of service separation; and were first clinically manifested some 42 years after service in June 2002. VA clinical documentation dated in June 2002 states that the Veteran complained of bilateral hearing loss and a "dead" right ear. Contemporaneous audiological testing was reported to reveal severe to profound mixed hearing loss. A July 2002 VA otolaryngology evaluation states that the Veteran presented a history of progressive right ear hearing loss "since the 60s." An assessment of right otosclerosis was advanced. VA clinical documentation dated in August 2002 states that the Veteran underwent a right stapedectomy. The Veteran has currently diagnosed bilateral sensorineural hearing loss. At an April 2009 VA audiological examination for compensation purposes, the Veteran presented a history of in-service exposure to gunfire and grenade explosions and the progressive onset of bilateral hearing loss in "the early 1960's." On contemporaneous audiological evaluation, the Veteran exhibited pure tone thresholds in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 75 75 65 LEFT 15 35 60 55 60 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and 94 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. On the question of nexus of bilateral sensorineural hearing loss to service, the Board finds that the weight of the competent evidence demonstrates that the sensorineural hearing loss was not incurred in active service and is not related to such service. The Veteran does not advance that his bilateral sensorineural hearing loss was manifested in service. No competent medical professional has attributed the onset of the Veteran's bilateral sensorineural hearing loss to active service. The audiological and otolaryngological opinions of records expressly negate such a relationship. The April 2009 VA examination report conveys that the examiner concluded that, "due to normal hearing at separation and Veteran's active duty military occupation of radar operator, it is my opinion that the Veteran's hearing loss is not caused by or the result of military noise exposure." The report of an April 2013 VA audiological examination states that "due to normal hearing bilaterally through 8kHz, it is my opinion that Veteran's hearing loss is less likely as not caused by or a result of military noise exposure." In November 2013, the Board requested an opinion from a VHA otolaryngology opinion and directed that, for purposes of rendering the requested opinion, the physician was "to concede that the report of the May 1960 physical examination for service separation demonstrated that thresholds for the right and left ears were not all within the normal hearing range of 20 or less decibels and thus worsened (shifted) during service" in accordance with Hensley. The November 2013 otolaryngology VHA opinion concludes that: 1. It is likely as not that that his hearing loss was initially manifested during active service. The Veteran did have a right sided hearing loss at 500 Hz on his separation examination. His hearing in the left ear was completely normal. It is impossible to speculate the cause of his 5 db hearing loss. It is not, however, congruent with noise induced hearing loss which manifests as high frequency loss. His hearing was normal bilaterally in all other frequencies at the time of separation. 2. It is less likely as not that the Veteran's hearing loss is related to inservice noise exposure. The type of noise exposure encountered during the Veteran's duty would result in loss of hearing at high frequencies that would have been apparent at the time of separation. The most recent audiogram demonstrates mild to severe downsloping sensorineural hearing loss. This is more consistent with age related loss. In addition, the Veteran has a history of otosclerosis that also will cause a progressive sensorineural hearing loss. 3. It is less likely as not that the Veteran's hearing loss originated during active service. As previously discussed above, the 5 db loss at 500Hz is not consistent with noise induced loss. (emphasis added). While conceding in accordance to the Board's direction that the Veteran initially exhibited a "5 db loss at 500Hz" in the right ear at his physical examination for service separation, the VHA opinion does not conclude that such a shift in auditory acuity represented the initial manifestation of a recurrent hearing loss disability or was in any other manner related to the subsequent of the Veteran's chronic bilateral sensorineural hearing loss decades later. Indeed, the examiner expressly determined that Veteran's current hearing loss disability was more consistent with the ageing process and/or a history of otosclerosis than noise exposure. To the extent that the examiner states in Paragraph 1 that it is it is likely as not that his hearing loss was initially manifested during active service, the examiner goes on to discuss the 5 db hearing loss at 500 Hz on the separation examination. A fair reading of this portion of the opinion is that the examiner recognizes and is addressing the 5 db shift in auditory acuity noted on the separation examination and then addresses the cause of the shift. The examiner provides further rationale for his opinion and concludes that it is less likely than not that the Veteran's hearing loss originated during service and explains that the 5db loss at 500 Hz is not consistent with noise induced loss. Read in both its totality and in the light most favorable to the Veteran, the VHA opinion does not support the conclusion that service connection is warranted for a hearing loss disability. The Veteran has acknowledged that he was not diagnosed with or treated for a hearing loss disability during active service. His testimony and other statements as to having been exposed to significant noise, including gunfire and grenade explosions, during his military training are both competent and credible. To the extent that the Veteran asserts that his current bilateral sensorineural hearing loss is related to his in-service noise exposure, the Board finds that the Veteran's testimony and lay statements do not constitute competent evidence in this case given that sensorineural hearing loss was not shown in service; there were no chronic symptoms of hearing loss disability in service or for years after service; sensorineural hearing loss was first diagnosed decades after service; and medical professionals have expressly negated a relationship between such sensorineural hearing loss and the Veteran's in-service noise exposure. The Veteran has not offered any medical qualifications. The Veteran is not competent to offer an opinion regarding the etiology of his bilateral hearing loss under the facts in this case. The onset of sensorineural hearing loss, in the context of no chronic in-service symptoms or continuous post-service symptoms, is not amenable to observation by a lay person. The question of the etiology of such a disability involves the ruling in or out of multiple potential etiologies, so is too complex to be addressed by a layperson. The relationship between sensorineural hearing loss and its causes is the subject of extensive research by medical professionals as it would require specific clinical testing and correlation. See Jandreau, 492 F.3d at 1377. In this case, a recurrent hearing loss disability including chronic bilateral sensorineural hearing loss was not shown during active service or for many years thereafter. The record does not reflect that there were continuous post-service symptoms of sensorineural hearing loss or that such disability became manifest to a compensable degree within one year of service separation. The weight of the competent evidence demonstrates that the currently diagnosed bilateral sensorineural hearing loss was not incurred in or otherwise related to active service. For these reasons, the Board finds that service connection for a bilateral hearing loss disability to include sensorineural hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Accordingly, the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss to include sensorineural hearing loss is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs