Citation Nr: 1312481	
Decision Date: 04/15/13    Archive Date: 05/02/13

DOCKET NO.  10-37 501	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The Veteran served on active duty from January 1946 to December 1947.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Veteran was scheduled for Travel Board hearing in November 2012; however, he failed to appear or to provide any explanation for his absence.  As such, his request for a hearing is deemed withdrawn.  See 38 C.F.R. § 20.704 (2012).

In January 2013 the Board remanded this case for further development.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Virtual VA file has been reviewed in conjunction with the disposition of the issue remaining on appeal. 

As noted in a January 2013 remand the issues of entitlement to service connection for breathing problems and muscular pain, and the issue of entitlement to an increased evaluation for bilateral onychomycosis of the finger and toenails, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board still does not have jurisdiction over them, and they are referred to the AOJ for appropriate and immediate action. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Bilateral hearing loss was not demonstrated in-service, a sensorineural hearing loss was not compensably disabling within a year of separation from active duty, and there is no competent and credible evidence of a nexus between bilateral hearing loss and service.


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred or aggravated by active service, nor may a sensorineural hearing loss be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Regarding the Veteran's claim of entitlement to  service connection, the requirements of 38 U.S.C.A. § 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or the completeness of the application.  VA notified the Veteran in March 2009 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations.  

In January 2013, the Board remanded the matter, in part, to obtain a VA examination and medical opinion addressing the nature and etiology of the Veteran's hearing loss.  A VA examination was conducted in March 2013.  The examiner reported that Veteran was unwilling or unable to provide valid puretone responses and, as such, she was unable to render a medical opinion.  The examiner noted that the Veteran had no difficulty conversing with her and a review of the record does not reveal any reasonable explanation for the Veteran's inability to provide valid responses.  Indeed, the Veteran has undergone audiometric testing for a private physician as well as for VA outpatient treatment purposes.  While VA has a duty to assist the Veteran in the development of his claim (i.e., affording him VA examinations), the appellant has a duty to cooperate with VA.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  As such, no further Remand for VA examination shall be ordered and the Board shall decide the claim based on the evidence currently of record. 

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Legal Criteria

Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing:  (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (e.g., sensorineural hearing loss), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2003) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)).  

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.  38 C.F.R. § 3.303(d).  

For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or when speech recognition scores utilizing the Maryland CNC Tests are less than 94 percent.  38 C.F.R. § 3.385.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b). 

Analysis

In this case, the Veteran asserts that his current hearing loss is a result of acoustic trauma during military service.  He has reported working as an aircraft mechanic on the flight line and as a disc jockey during service.  He has also reported significant post service noise exposure while working in construction as a carpenter for 50 years.  For the reasons explained below, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hearing loss disability.

The Veteran's service treatment records are unremarkable for any treatment, complaints, or diagnoses related to hearing loss.  There are no records of any audiology testing during service; entrance and separation examinations are not of record.

Post service, VA outpatient treatment records reflect that the Veteran had no hearing deficits in October 2000.  In September 2001, it was noted that he had no hearing difficulty and was hearing non-impaired.  In March 2002, it was noted that the appellant had no sensory hearing loss.  In September 2002, April 2003, July 2004, July 2005, September 2006, September 2007, it was also noted that the Veteran had no sensory hearing loss or hearing impairment.

The first indication of hearing loss is noted in a November 2008 VA outpatient treatment record.  It was noted that the Veteran had a clear discharge from his right ear and some impaired hearing.  

A December 2008 VA audiology consultation note reflects that the Veteran complained primarily of moisture in his right ear.  At that time, he reported noise exposure in the Navy from riveting and explosions. He also reported occupational noise exposure as a carpenter for 50 years, and recreational exposure from hunting and shooting guns.  As noted in the June 2009 VA examination report, his puretone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
10
15
30
LEFT
10
10
15
55
55

Speech discrimination scores were 92 percent in the right ear and 88 percent in the left ear.  The audiologist indicated that the Veteran's right ear hearing was within normal limits from 250 to 3000 Hertz, and that he had sloping to mild sensorineural hearing loss from 4000 to 6000 Hertz.  He had normal hearing in the left ear from 250 to 2000 Hertz, and sloping to moderately severe sensorineural hearing loss from 3000 to 6000 Hertz.  

The Veteran also submitted an April 2009 letter from Dr. Dolgin along with a audiogram, which was reported in chart format.  The results of the audiogram, as interpreted by the June 2009 VA examiner, reflect that the Veteran's puretone thresholds, in decibels, were as follows:  


HERTZ

500
1000
2000
3000
4000
RIGHT
40
30
35
45
60
LEFT
30
35
40
50
60

Speech discrimination scores were 100 percent in both ears.  It was opined that the Veteran had mild to moderate to severe neurosensory hearing loss in both ears with excellent word discrimination.  Dr. Dolgin opined that the Veteran had "sensorineural hearing loss due to noise induced trauma while in active military service."  

The report of a June 2009 VA examination reflects the Veteran's complaints of hearing difficulties in most situations especially without a hearing aid.  He reported that he worked as an aircraft mechanic and had exposure to aircraft along the flight line and equipment noise.  He said he also served as disc jockey for four months.  Regarding occupational noise exposure, the appellant reported that he had significant noise exposure without ear protection as a carpenter for 50 years and recreational noise exposure as a hunter and shooter without ear protection.  During audiological evaluation, the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
15
30
LEFT
15
15
25
55
55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear.  The diagnosis was right ear normal hearing through 3000 Hz with a mild loss at 4000 Hz and left ear normal hearing through 2000 Hz with moderately severe loss at 3000 and 4000 Hz.  

Regarding etiology of the hearing loss the examiner indicated that he could not resolve the issue without resorting to speculation.  The examiner indicated that the service medical records were not available to rule out or confirm hearing loss at discharge and there were no audiometric results or audiology notes.  In addition, the examiner noted that the Veteran provided inconsistent reports regarding noise exposure during service and that he had significant lifelong noise exposure occupationally.  

The report of a March 2013 VA examination reflects the Veteran's complaints of decreased hearing, especially in the right ear.  He reported that his military specialty was mechanic's helper and that he worked around aircraft engines.  He also said that he worked in carpentry and as a disc jockey, but that there was not loud noise around.  He said he was exposed to recreational noise as a hunter, but wore ear protection.  The examiner indicated that the Veteran's pure tone test responses were unreliable and not consistent with audiological findings even after repeated instructions.  The examiner stated that the Veteran was unwilling or unable to provide reliable and valid behavioral puretone responses, but that there was no question that the Veteran had hearing loss.  The examiner indicated, however, that she was unable to render an opinion.  

In this case, the Veteran meets the criteria for left ear hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385.  The audiometric results for the right ear, however, have not consistently met the criteria.  Even assuming that the criteria for a current bilateral hearing loss disability are met, however, the preponderance of the evidence is against the claim of entitlement to service connection.

At the outset, the Veteran is competent to report his history of noise exposure and his symptoms regarding hearing loss.  See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Board finds the Veteran's statements regarding his noise exposure during service credible, however, his statements regarding occupational and recreational noise exposure after service have been inconsistent.  During a December 2008 VA audiology consultation and the June 2009 VA examination, he reported significant noise exposure while working post service as a carpenter in construction without ear protection for 50 years.  He also reported that he was a hunter and shooter and did not wear ear protection.  During the most recent March 2013 VA examination, he provided a different history.  He said that he was not exposed to loud noise as a carpenter and that he wore ear protection while he hunted.  The Veteran's most recent statements not credible as they are inconsistent with his previous reports.  Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of testimony.)

In this case, the evidence preponderates against finding that the Veteran's hearing loss was became manifest during service or to a compensable degree within one year after separation.  The first indication that the Veteran had hearing loss was in November 2008, over 60 years after his military service.  The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The present case involves not simply a lack of clinical evidence, but normal findings as recently as September 2007, which is a time gap of almost six decades.  

In this case, neither the medical nor the lay evidence establishes that hearing loss manifested in service or that there has been continuity of symptomatology since service.  Hence, the only remaining issue is whether there is a nexus between the Veteran's service and his current hearing loss.  See 38 C.F.R. § 3.303(d). 

Here, the only competent evidence linking the Veteran's hearing loss to service is Dr. Dolgin's April 2009 opinion.  Although Dr. Dolgin opined that the appellant's hearing loss was due to noise induced trauma while in active military service, he provided no rationale for this opinion.  He did not indicate that he had access to or reviewed the Veteran's claims file or that he considered the significant post service occupational noise that was reported by the appellant elsewhere.  For these reasons, the Board finds that Dr. Dolgin's opinion has little, if any, probative value.  

As explained above, the June 2009 and March 2013 VA examiners were unable to provide an opinion without resorting to speculation.  The Veteran did not provide valid responses to puretone testing during the March 2013 VA examination despite repeated instruction.  Therefore, there is no other option but to evaluate the Veteran's claim based on the evidence of record.  Here, the Board finds that the most probative evidence weighs against the claim.  The Veteran reported significant occupational exposure during civilian life and there is a time gap of six decades between service and the first indication of hearing loss.  

The Board has considered the Veteran's lay contentions that his current hearing loss is related to noise exposure during military service.  To the extent that these assertions are being offered to establish a nexus with his military service, such evidence must fail.  The Board finds that determining the etiology of a sensorineural hearing loss is a complex medical matter beyond the ken of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship.  Whether his hearing loss is related to noise exposure that occurred many years ago requires specialized training.  As a lay person untrained in the field of audiological disorders the appellant is not competent to render an opinion on etiology in this case.

For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hearing loss disability.  The benefit of the doubt doctrine is not for application, and the claim is denied.  See 38 C.F.R. § 3.102


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs