Citation Nr: 1237013	
Decision Date: 10/25/12    Archive Date: 11/08/12

DOCKET NO.  10-42 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania



THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Lewis C. Fichera, Esq.



ATTORNEY FOR THE BOARD

D. Schechner, Counsel



INTRODUCTION

The Veteran served on active duty from October 1952 to August 1954, followed by subsequent periods of inactive duty for training with the Army Reserve, as well as a period of active duty for training from March 1986 to September 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In February 2009, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss.  An appeal of the denial of service connection was not received within one year.

2.  Evidence received since the February 2009 decision that pertains to the Veteran's claim for bilateral hearing loss is new and material.

3.  On de novo review, the Veteran's current bilateral hearing loss was not manifested in service, sensorineural hearing loss (SNHL) was not manifested in the first postservice year, the bilateral hearing loss is not shown to have increased in severity beyond normal progression during his active duty service from March 26 to September 15, 1986, and it is not otherwise shown to be related to his service.






CONCLUSIONS OF LAW

1.  The February 2009 Board decision that denied the Veteran's claim of entitlement to service connection for bilateral hearing loss is final.  38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012).

2.  New and material evidence to reopen a claim for service connection for bilateral hearing loss has been submitted, and the claim is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  Service connection for bilateral hearing loss is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits.  Further analysis under Kent is not required in this case, however, as the claim is being reopened.

The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured.  The RO arranged for a VA audiological examination in June 2012, and the Board finds this examination to be adequate as it included both a review of the Veteran's history and an audiological examination that included all necessary findings.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is also met.  Accordingly, the Board will address the claim.

Legal Criteria, Factual Background, and Analysis

The Board denied the Veteran's claim for entitlement to bilateral hearing loss in a February 2009 decision.  The Veteran did not appeal the Board's decision.  Therefore, that decision is final.  38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100.

Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  Rating actions from which an appeal is not timely perfected become final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).  

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a).  In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Because sensorineural hearing loss (SNHL) is an organic disease of the nervous system, it may be service connected on a presumptive basis if manifested to a compensable degree in the first year following a veteran's discharge from active duty.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (regarding credibility).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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.  

The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service.  

While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions (see Obert v. Brown, 5 Vet. App. 30, 33 (1993)) the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board may appropriately favor the opinion of one competent medical authority over another, provided that it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  

A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in severity of the disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disability.  A lack of aggravation can be shown by establishing either that there was no increase in disability or that any increase in disability was due to the natural progression of the preexisting condition.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 

Evidence of record at the time of the February 2009 Board decision included the Veteran's STRs from his active duty service from 1952 to 1954, Reserve treatment records from 1962 to 1984, STRs from his active duty for training service in 1986, a December 1999 VA examination, June 2001 VA examinations, a September 2004 private audiological evaluation, a September 2005 VA examination, a December 2007 VA examination, VA treatment records, and lay statements.

Evidence received since the February 2009 Board decision includes a February 2010 private medical opinion that the Veteran's hearing loss is a direct result of his military service and combat experience, as well as a June 2012 VA audiological examination.  The private opinion letter directly addresses the basis for the prior denial of the claim (i.e., that the competent medical evidence does not support that a relationship exists between the Veteran's currently diagnosed bilateral hearing loss and his military service), and therefore addresses the threshold unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss.  As this opinion suggests a nexus between current hearing loss and noise exposure in service, the evidence raises a reasonable possibility of substantiating the claim and is material.  Therefore, the claim may/must be reopened.

The analysis proceeds to de novo review.  The Board observes that the Veteran is not prejudiced by the Board's proceeding to de novo review upon reopening without returning the matter to the RO for de novo review, because the RO has already conducted de novo review.  See Hickson v. Shinseki, 23 Vet. App. 394 (2010).

The Veteran contends that his current bilateral hearing loss was caused by exposure to acoustic trauma during military service, from such duties as serving as a rifleman in an infantry unit in Korea.  His service records confirm his military occupational specialty as an infantryman and his receipt of the Combat Infantryman Badge.  Consequently, it is amply demonstrated, and not in dispute, that he was exposed to very loud noise during his service.

The Veteran's STRs from his active duty service from 1952 to 1954 are silent for complaints, findings, treatment, or diagnosis pertaining to hearing loss.  Audiometry on June 1952 service entrance examination and on July 1954 service separation examination showed hearing within normal limits (a whispered voice hearing test was 15/15 bilaterally).

Postservice treatment records include Reserve treatment records from 1962 through 1984.  On July 1962 Reserve examination, audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
5
5
0
0
5
Left
0
0
0
0
15

On May 1971 Reserve examination, a whispered voice test was normal (15/15 bilaterally).

On March 1972 Reserve examination, audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
15
10
10
n/a
20
Left
15
10
10
n/a
30

On September 1974 Reserve treatment record, the Veteran denied decreased hearing.  

On March 1976 Reserve examination, audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
0
5
5
20
25
Left
25
0
0
15
35

On July 1979 audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
5
10
5
30
45
Left
5
5
0
20
50

On February 1980 Reserve examination, audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
10
5
0
25
30
Left
10
5
0
20
45

On January 1984 Reserve examination, the assessment was bilateral high frequency hearing loss; audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
5
5
5
30
45
Left
5
5
5
25
50

The Veteran then served for 6 months in active duty for training from March to September 1986.  His service personnel records indicate that during this period, he served as a biomedical information systems officer and intelligence and training officer.  The Veteran has indicated that he did not have exposure to excessive noise during this period of service.

On April 1986 examination, the assessment was mild high frequency hearing loss; audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
10
5
10
30
40
Left
0
0
0
20
45

On July 1986 audiology consult, the Veteran complained of gradually decreasing hearing acuity due to exposure to high frequency sounds and loud noises.  
Audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
5
10
5
30
45
Left
5
5
0
20
50

The assessment was mild to moderate high frequency sensorineural hearing loss bilaterally.  Speech recognition was excellent bilaterally.

In a September 1999 statement, the Veteran stated that he was referred to an ear specialist in approximately 1972 for complaints of tinnitus.  He then stated that while he was on active duty in 1986, an audiological evaluation revealed high frequency hearing loss.  He stated that on September 1999 VA treatment, scarring was noted to the left eardrum, and he was told that it could have been due to loud noises from exploding artillery shells.  During September 1999 VA treatment, the Veteran complained of chronic hearing loss.

During a December 1999 VA audiological examination, the Veteran complained of a bilateral hearing loss causing him difficulty hearing the television and the telephone, and his wife complained that he was unable to hear her speak and also had difficulty understanding salesmen.  He reported the onset of hearing loss approximately 20 years earlier (approximately 1979) and he felt it had gotten progressively worse.  The Veteran noted that a hearing test was performed in service in 1986, and he had been told that he had a high-frequency hearing loss at that time.  He denied any ear pathology or surgery.  The examiner noted that the Veteran was exposed to excessive noise while in service when he was working with the infantry in Korea and also while he was on the front line and exposed to heavy shelling; no hearing protection was worn at that time.  Audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
10
15
30
50
65
Left
15
35
35
55
70

Average puretone threshold were 40 decibels for the right ear and 49 decibels for the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear.  The assessment was mild to severe sensorineural hearing loss bilaterally with thresholds being slightly worse in the left ear.  No opinion was offered regarding etiology.

During March 2000 VA treatment, the Veteran reported progressively worse hearing over the previous 20 years.  He reported exposure to loud noise in service while in Korea in 1953 due to artillery explosions.  He was fitted for hearing aids.

During a June 2001 VA audiological examination, the Veteran noted that his hearing had worsened since the previous examination in December 1999. He reported the onset of his hearing loss approximately 20 years earlier and it had worsened over time.  He reported exposure to excessive noise in service when he was in the infantry in Korea and on the front line, including exposure to heavy shelling for one month, with no hearing protection.  The examiner noted that hearing aids were issued by VA in May 2000.  Audiometric testing again confirmed a bilateral hearing loss disability (per 38 C.F.R. § 3.385).  The assessment was mild hearing loss bilaterally up to 2000 Hertz sloping to a moderate to severe sensorineural hearing loss at the higher frequencies.  The examiner noted a slight drop in hearing bilaterally since the December 1999 examination, especially at the lower frequencies.

During a June 2001 VA ear disease examination, the Veteran reported a 20-year history of hearing loss, with no past or current treatments.  The auricles, external auditory canals, tympanic membranes, and tympanums were within normal limits.  No tenderness or discharge was noted, and there was no active ear disease or infection present.  No vestibular disorders or Meniere's disease was present.  The diagnostic impression was bilateral mild sensorineural hearing loss.  The examiner opined that, because of the near 30-year interval between service and report of hearing loss according to the claims file, no causal relationship is likely between noise exposure in service and current hearing loss.

On September 2005 VA audiological evaluation, the Veteran reported that he served in the Army from 1952 through 1954 and then for six months in 1986.  He reported a bilateral hearing loss with the onset approximately 26 years prior (approximately 1979) that had gotten progressively worse over the years.  The examiner noted a 1986 hearing test when the Veteran was told that he had a high frequency hearing loss.  The Veteran reported that while serving in the military, he was exposed to excessive noise in the infantry, he was a rifleman for one month while in Korea, and he was exposed to heavy incoming shelling for one month; no hearing protection was worn.  He reported that he was also exposed to the same incoming shelling intermittently for an additional 3 to 4 months.  He reported that he had not been exposed to any kind of excessive noise outside the military.  Audiometric testing again confirmed a bilateral hearing loss disability (per 38 C.F.R. § 3.385).  The impression was a moderate sensorineural hearing loss bilaterally up to 2000 Hertz sloping to a moderately severe sensorineural hearing loss in both ears at the high frequencies.  No opinion was offered regarding etiology.

The Veteran subsequently submitted records from Dr. D.Z., who noted in a June 2004 letter that the Veteran had been using hearing aids for some time; the Veteran had developed a loud pounding in the right ear greater than the left which was synchronous with his pulse but had resolved.  He had been diagnosed with labyrinthitis which had also resolved.  Examination of the ears was negative.  Private treatment records from 2004 and 2005 document these resolved complaints.

In a November 2007 statement, the Veteran stated that he had had a hearing problem for a long time; his hearing loss had developed gradually and steadily worsened over a period of time.  He contended that his active duty service in the 1950s was the cause of his current hearing loss.  He stated that his service began with 8 weeks of training followed by 8 weeks of Advanced Infantry Training, during which he was frequently exposed to the loud noises of the many weapons fired by the trainees, which caused earaches and affected his hearing, but he did not report to sick call.  He stated that ear plugs to reduce the loud weapon noises were never provided.  He stated that he then was continually exposed to the noises of a battlefield during his service in an infantry rifle company in Korea, with a massive amount of incoming artillery shells falling very close to him.

In a November 2007 formal Decision Review Officer hearing at the RO, the Veteran testified that his hearing loss began from traumatic audio exposure while serving in the Korean War.  He testified that after he was caught out in the open during an attack, he experienced ringing in his ears and a loss of hearing from the explosions.  He testified that his sergeant told him the symptoms would go away in time, but they did not.  He testified that he never sought medical help for hearing loss while he was in service for fear of being deemed a malingerer.  He testified that, after service, he "just lived with it" and did not pursue seeking medical help until later on, when he returned to active duty status in 1986.

On December 2007 VA audiological examination, the examiner noted that the first time hearing loss was noted in the claims file was in February 1972 when the right ear was within normal limits to 4000 Hertz but the left ear had a mild loss at 4000 Hertz.  Then on March 1976 examination, the right ear was within normal limits to 4000 Hertz, and the left ear was again within normal limits to 3000 Hertz with a mild loss at 4000 Hertz.  On February 1980 examination, hearing was within normal limits to 3000 Hertz for both ears with the right ear having a mild to moderate loss at 4000 Hertz and beyond, and the left ear having a moderate loss.  On January 1984 examination, the right ear was within normal limits to 2000 Hertz with a mild to moderate loss beyond that, and the left ear was within normal limits through 3000 Hertz with a moderate loss beyond that.  The examiner noted a Reserves hearing test in April 1986 showing hearing within normal limits through 2000 Hertz for both ears with a mild to moderate loss beyond that.  The examiner noted that the April 1986 test took place during the Veteran's Reserves service, and the other tests (from 1972 through 1984) did not take place while the Veteran was in active duty or Reserves service.  The Veteran reported having difficulty hearing in all situations without his hearing aids and he has withdrawn from people as a result.  He described his hearing loss as having started about 30-plus years prior and it had progressively worsened.  The examiner noted that, according to the records, it appears to have started in approximately 1972.  The examiner noted the Veteran's statements that he had problems with hearing during his training upon joining the Army but that he never complained and was told by his sergeant in Korea that it would go away.  The Veteran reported that he went to a doctor 10 years after service and his hearing had gotten slightly worse.  He reported military noise exposure serving as a rifleman in the infantry in Korea on the front line, exposed to heavy shelling without hearing protection.  The examiner also noted that the Veteran was in the Reserves for an additional six months (in 1986).  The Veteran denied having any noisy hobbies and stated that he worked office jobs as a civilian after service.  He began wearing hearing aids in 2000.  Audiometric testing again confirmed a bilateral hearing loss disability (per 38 C.F.R. § 3.385).  The assessment was bilateral moderate to moderately severe sensorineural hearing loss with poor speech discrimination in each ear.  The examiner noted that when the Veteran's hearing loss was first noticed, he had the configuration of a noise induced hearing loss, only in the high frequencies, and then the hearing in the low frequencies decreased throughout the years; however, the examiner noted that the Veteran had normal hearing tests until 1972, 18 years after separation from service.  The examiner opined that it is highly unlikely that hearing loss that was caused or aggravated by military noise exposure would not show up for 18 years.  The examiner opined that it is less likely than not that the Veteran's hearing loss was caused by military noise exposure; the examiner opined that the Veteran's military noise exposure is most likely not a causal factor since the hearing loss did not show up for the first 18 years, a very long time as hearing loss usually will show up within the year after noise exposure at the very most.  The examiner opined again that the Veteran's hearing loss was not a result of military noise exposure while serving in Korea.

The Veteran submitted a request to reopen the claim of service connection for bilateral hearing loss in June 2009.

In a February 2010 private treatment letter, Dr. A.F. noted that the Veteran spent 16 months in combat duty in Korea with exposure to mortar, small arms, and artillery fire, and on one occasion he endured artillery shelling of 5,000 rounds in 1.5 hours.  Dr. A.F. opined that, as a result of that noise exposure, the Veteran developed hearing loss which had worsened with time, interfering with his ability to communicate.  On physical examination, the tympanic membranes were normal in appearance.  A complete audiometric evaluation showed moderate to severe sloping bilateral sensorineural hearing loss, with speech discrimination of 48 percent in the right ear and 56 percent in the left ear.  Dr. A.F. opined that there was no question that the Veteran's hearing loss was a direct result of his military service and combat experience.  He noted that extensive review of the Veteran's military record showed hearing loss of 45 to 50 decibels at 6000 Hertz as early as 1980 with progression in 1984 and since that time.  Dr. A.F. opined that it was not reasonable to conclude that the nature and extent of the Veteran's hearing loss was not a direct result of his military experience.

In conjunction with a June 2012 VA audiological examination, the examiner reviewed the claims file.  The examiner noted that there was no evidence of significant threshold shifts between the April 1986 and July 1986 examinations.  The examiner also noted the 2010 audiogram and opinion letter from Dr. A.F.  Audiometric testing again confirmed a bilateral hearing loss disability (per 38 C.F.R. § 3.385).  The examiner noted that the Veteran's hearing was considered within normal limits using only whispered voice testing at enlistment and separation beginning in 1952 and ending in 1956, and in July 1962 his hearing was within normal limits at all frequencies between 250 and 8000 Hertz.  The examiner noted that the first evidence of hearing loss was beginning in 1972 when there was a mild loss between 4000 and 6000 Hertz in the left ear, which was many years after the Veteran's active duty.  The examiner noted evidence of progression of hearing loss during the Veteran's time in the Reserves; however, during his active duty in 1986, there were two tests performed in April and July 1986, and there was no evidence of significant threshold shifts between the two.  Based on the fact that the Veteran's hearing was within normal limits in 1962, and because there was no evidence of hearing loss beginning until 1972, the examiner opined that it was less likely than not that the Veteran's hearing loss is a result of military noise exposure.  The examiner also opined that there was no evidence of significant threshold shifts during the other active duty period in 1986; therefore it was less likely than not that the Veteran's hearing loss was aggravated during active duty military service.

It is not in dispute that the Veteran now has bilateral hearing loss.  The hearing loss (by VA standards) was confirmed by VA audiometry.  However, the disability is not shown to have been manifested in his first period of service from 1952 to 1954.  Indeed, the Veteran denied any hearing difficulties as late as 1974.  Therefore, service connection on the basis that hearing loss became manifest in service and persisted, or on a chronic disease presumptive basis (for SNHL as an organic disease of the nervous system under 38 U.S.C.A. § 1112), is not warranted.  

Regarding the 1986 period of active duty for training, the pre-existence of the bilateral hearing loss precludes a finding that it was incurred in service.  Consequently, to establish service connection based on this period of service, the Veteran must establish that such pre-existing disability was aggravated by his service; he must show that the bilateral hearing loss increased in severity, beyond natural progression, during service.  See Wagner, supra.

Whether a disability increased in severity is determined by reviewing the evidence regarding the state of the disability before, during, and after active duty service.  Here, the evidence does not show that the Veteran's confirmed and pre-existing bilateral hearing loss increased in severity during his brief active duty for training in 1986.  Indeed, the two audiograms from this period of service show no significant decrease in hearing acuity.  There is no other suggestion from the record, either lay or medical, of an increase in severity during that period of service that would trigger a presumption of aggravation.  Moreover, the June 2012 VA examiner indicated clearly that there was no changed in hearing during that period.  Thus, there is no basis for a grant of service connection based upon aggravation.    

What remains for consideration is whether the hearing loss is somehow otherwise shown to be etiologically related to the Veteran's service.  The competent medical evidence in this matter consists of several VA examinations and the February 2010 private opinion letter.  

The Board finds the June 2012 VA examiner's opinion to be entitled to great probative weight, as it took into account a complete review of the Veteran's entire medical history and statements included in the claims file and reflects a full rationale for the conclusions reached, citing to the absence of any finding of hearing loss in the medical evidence until 1972, and the clear evidence of progression of hearing loss during the Veteran's time in the Reserves between his separation from service in 1954 and his brief period of active duty service for training in 1986.  The February 2010 private opinion indicates a review of some portion of the military records, but the examiner failed to provide any basis for the conclusion that hearing loss shown as early as 1980 was somehow related to a period of service from the Korean War era.  In this regard, the Board notes that the lapse of time between that initial service and the documented hearing loss weighs against the claim as well.  See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints).  

The final question for the Board is whether the Veteran's own lay statements and testimony support his claim.  The Veteran has essentially contended that his hearing loss was not first manifest in service or for many years thereafter but was a direct consequence of noise exposure in service.  The Board does not doubt either the current diagnosis or the noise exposure itself.  However, the determination of whether a current diagnosis shown years after noise exposure was due to such noise exposure is a medical/audiological determination that is the province of trained and credentialed doctors or audiologists.  The Veteran simply has not been shown to have the training, credentials, or other expertise in the fields of medicine and audiology to support such an etiology opinion.  Moreover, while the Veteran certainly could observe a decrease in auditory acuity, he similarly lacks the background to ascertain that such decrease constitutes a hearing loss disability under 38 C.F.R. § 3.385.  Consequently, his opinion, though credible and well-intentioned, does not constitute competent evidence and has no probative value.  It is instead substantially outweighed by both the June 2012 VA examiner's opinion and the fact of the considerable lapse of time between the end of service in the 1950s and the first documented hearing loss disability meeting the criteria of 38 C.F.R. § 3.385.

In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's reopened claim, both in terms of incurrence and aggravation.  Therefore, service connection for bilateral hearing loss must be denied.  38 U.S.C.A. § 5107(b).  


ORDER

The appeal to reopen a claim of service connection for bilateral hearing loss is granted, to that extent only.

Service connection for bilateral hearing loss is denied.



____________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs