Citation Nr: 1317367	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  06-08 918	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for sensorineural hearing loss in the left ear.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from December 1970 to September 1972, from January 1986 to June 1986, and from February 1991 to March 1991.  The Veteran had additional periods of reserve service. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  In pertinent part, the RO denied a claim of entitlement to service connection for bilateral hearing loss.  In April 2010, the Veteran testified at a hearing before the undersigned.  In July 2010 and August 2012, the Board remanded the case for additional development.

By means of a rating decision dated January 2013, the RO granted service connection for sensorineural hearing loss in the right ear.  That decision terminated the appeal to that issue.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

In April 2013, the Veteran submitted a written statement to the Board.  The Veteran's representative has waived RO review of this statement in the first instance.

A review of the Virtual VA electronic storage system reveals additional VA clinic records which are not associated with the paper claims folder.  The RO has reviewed this evidence in the February 2013 supplemental statement of the case (SSOC).


FINDINGS OF FACT

1.  The most competent and credible evidence of record shows that the Veteran's left ear sensorineural hearing loss did not manifest during his periods of active service from December 1970 to September 1972 and from January 1986, or to a compensable degree within one year of service separation from these periods of active service.  

2.  The Veteran's left ear sensorineural hearing loss is shown to have clearly and unmistakably existed prior to his period of active service from February 1991 to March 1991 and clearly and unmistakably was not aggravated during this period of service.

3.  The most competent and credible evidence of record shows that the Veteran's left ear sensorineural hearing loss is not shown to have been incurred or aggravated during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA).


CONCLUSION OF LAW

Service connection for sensorineural hearing loss in the left ear is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented in part at 38 C.F.R. § 3.159 (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 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 v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice by letter dated in February 2005.  The Veteran was notified of the evidence needed to substantiate the claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service.  He was also advised that certain diseases could be presumed to have been caused by service under certain circumstances.  The Veteran was further notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorizes VA to obtain private medical records on his behalf.  

A post-adjudicatory notice in March 2006 notified the Veteran of the provisions for the effective date of the claim and for the degree of disability assignable. 

As for the content and the timing of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Pelegrini, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice).

The notice was deficient to the extent that the Veteran was not provided pre-adjudicatory notice regarding the downstream elements of a service connection claim as required by Dingess.  However, this timing deficiency is not prejudicial as these issues are not implicated in the appeal.  Additionally, the timing deficiency was cured with readjudication of the claim in the February 2013 supplemental statement of the case.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained the Veteran's service treatment records (STRs) for his active duty and reserve service.  Notably, the record does not contain entrance and separation examinations for his period of service for January 1986 to June 1986 and does not contain an entrance examination for his period of active service from February 1991 to March 1991.  The record reflects that, upon entering service in February 1991, the Veteran was given a general screening examination wherein he reported hearing difficulty complaints.  It was noted that he was to be given a future hearing evaluation which occurred the next month.  Additionally, the record contains treatment records for both periods of active service.  The Veteran has not reported undergoing audiometric examinations for his period of service from January 1986 to June 1986.  See Transcript of August 2010 Board hearing, pp. 15-16.  Given the entirety of the record, to include the brief periods of active service in 1986 and 1991, the Board has no reason to believe that there are any missing STRs.

The RO has also obtained all VA clinic records identified by the Veteran, and all relevant private medical records for which the Veteran has identified and authorized VA to obtain on his behalf.  The Board is unaware of any relevant records in the possession of the Social Security Administration and the Veteran has not identified any other pertinent records for the RO to obtain on his behalf. 

Under 38 U.S.C.A. § 5103A(d), VA must obtain examination or opinion when necessary to decide the claim.  The Board remanded this case in July 2010 for medical opinion as to whether the Veteran's left ear hearing loss disability was shown to have been aggravated during his period of active service from February to March 1991.  The opinion obtained, received in August 2010, fully addressed the question posed by the Board based upon the Veteran's report of symptomatology and actual audiometric findings.  Although there were no deficiencies in the opinion obtained, the Board sought an addendum opinion in August 2012 which included review of additional evidence identified by the Veteran which was required to be obtained.  Upon receipt of this additional evidence, the examiner provided an addendum opinion in September 2012.  This opinion also fully addressed the question posed by the Board.  Notably, this examiner did not discuss the audiometric findings from March 1991 as she had previously considered in the August 2010 opinion.  The Board finds that this potential deficiency has not materially affected the ultimate opinion provided as this examiner discussed the March 1991 findings in the prior opinion.

The Board further finds that the RO has complied with the Board's remand directives.  In this respect, the RO scheduled the Veteran for a Travel Board hearing as directed in the October 2009 remand.  The RO obtained medical records from Dr. Kitchens and an adequate VA examination as directed in the July 2010 remand.  However, the Board remanded the case again in August 2012 as the RO failed to obtain the Veteran's worker compensation records.  Thereafter, the RO complied with the Board's August 2012 remand directives by sending a letter in August 2012 requesting the Veteran to identify any pertinent record, by obtaining the Veteran's worker compensation records, by associating relevant VA clinic records, by obtaining an adequate addendum VA opinion, and by readjudicating the claim.  As such, the Board finds that the RO has substantially complied with the Board's earlier remand instructions.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the April 2010 Board hearing, the Veteran was assisted at the hearing by an accredited representative and that representative and the Acting VLJ (AVLJ) asked questions to ascertain the extent of any in-service event or injury, the onset of his left ear hearing loss and whether his left ear hearing loss was related to his service.  In particular, the Veteran testified to his sources of military noise exposure, the onset of his left ear hearing loss, whether any doctor attributed his hearing loss to service, when he first sought treatment and whether there was any outstanding evidence.  Thus, no pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his representative that was not obtained while the appeal was in remand status or, as explained above, is not available.  The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

For these reason, the Board concludes that the duty-to-assist provisions of the VCAA have been complied with. 

Analysis

The Veteran seeks to establish his entitlement to service connection for sensorineural hearing loss in the left ear.  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. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In general, 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).

Under VA regulations, impaired hearing is considered a disability when the auditory threshold in 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 using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")

Notably, the Walker decision appeared to operate on the assumption that sensorineural hearing loss was not considered a "chronic" disease for purposes of 38 C.F.R. § 3.303(b).  This case did not contain any discussion as to whether sensorineural hearing loss came within the definition of an organic disease of the nervous system which is listed as a chronic disease for purposes of 38 C.F.R. § 3.309(a).  

VA has a policy that sensorineural hearing loss is deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a).  See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010).  See also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system).  As the Walker case did not expressly address this issue, the Board will deem sensorineural hearing loss as a "chronic" disease for purposes of this decision.

A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service.  38 U.S.C.A. § 1111.  The plain language of 38 U.S.C.A. § 1111 requires that there be an examination prior to entry into the period of service on which the claim is based.  Jones v. Shinseki, 24 Vet. App. 40, 45 (2010). 

When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service.  Wagner v. Principi, 370 F. 3d 1089, 1096 (2004).

A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153.

However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. § 3.306.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition.  38 C.F.R. § 3.304(b)(1), (2).

Veteran status is the first element required for a claim for disability benefits.  D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000).  The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2).  The term "active duty" includes full-time duty in the Armed Forces, other than ACDUTRA.  38 U.S.C.A. § 101(21).  The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof.  38 U.S.C.A. § 101(10).

Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d).  ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes.  38 C.F.R. § 3.6(c)(1).

Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA.  Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203, limiting the type of evidence accepted to verify service dates.

A service department finding that an injury occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA.  38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993).

The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA or INACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service.  Id.  See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA.  Smith, 24 Vet. App. at 47.  In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone.  Id.

With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA.  Smith, 24 Vet. App. at 48.  

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology.

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R. § 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R. § 3.159(a)(2).

In adjudicating the claim, the Board has reviewed all of the evidence in the Veteran's claims file including any found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran had his first period of active service December 1970 to September 1972.  He had a military occupational specialty (MOS) as a military policeman.  The Veteran's representative has cited VBA Fast Letter 10-35 (Sept. 2, 2010), entitled Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus, which recognizes that the Veteran's MOS exposed him to "moderate" noise.  The Veteran's October 1970 pre-induction examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
20
15
20
/
25
/
/
LEFT
/
20
10
15
/
15
/
/

The Veteran's April 1972 separation examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
0
5
0
/
0
/
/
LEFT
/
0
0
0
/
0
/
/

An April 1976 Army reserve examination did not include any audiometric findings.

A May 1980 Army reserve examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
15
15
15
/
25
/
/
LEFT
/
15
10
15
/
15
/
/

An August 1984 Army reserve examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
15
5
15
/
15
/
/
LEFT
/
25
10
25
/
25
/
/

A March 1985 Army reserve examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
20
10
15
/
20
/
/
LEFT
/
20
5
20
/
15
/
/

The Veteran had a second period of active service from January 1986 to June 1986.  There are no audiometric results associated with this period of active service.  He had an MOS as a subsistence supply specialist.

An October 1989 Army reserve examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
10
5
25
30
20
35
/
LEFT
/
10
5
30
40
30
30
/

The Veteran had a third period of active service from February 4, 1991, to March 1991.  He had an MOS as a material storage and handling specialist.  A February 8, 1991, STR first reflects the Veteran's report of hearing difficulty.  He was given an assessment of a possible hearing deficiency requiring a hearing test.  A March 1991 separation examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
10
5
30
35
25
35
/
LEFT
/
10
10
35
45
40
25
/

A July 1991 Army reserve examination included an audiometric evaluation which revealed the following puretone thresholds:

HERTZ

250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4096
6000
6144
8000
8192
RIGHT
/
25
15
35
45
40
65
/
LEFT
/
10
5
35
45
40
20
/

In March 2000, the Veteran filed a worker compensation claim for hearing loss with his employer.  He had a 22-year work history as an automotive mechanic and alleged that his hearing loss began in 1999 due to operating gasoline engine equipment in a confined space.

A March 2000 letter from an otolaryngologist indicated following the Veteran for significant high frequency sensorineural hearing loss for the last four months.  This examiner opined that there was no question that the Veteran's sensorineural hearing loss was secondary to noise exposure and "probably encountered in the work environment."  Otherwise, this examiner stated that "[i]t is my medical opinion that this is work related since this is a result of working in a noisy environment.  The hearing aids should be considered a work related expense."

A September 2002 private treatment record noted an impression that a "large portion" of the Veteran's hearing loss "may be" hereditary, but that it was aggravated by noise exposure. 

In December 2003, the Veteran and his employer signed a worker compensation settlement agreement stipulating that the Veteran suffered injuries to his ears as a result of exposure to high frequency noise.

A July 2010 examination note from ENT Associates of Alabama, P.A., noted the Veteran's history of moderate to severe decreased symptoms in the context of a history of military noise exposure.

The Veteran filed his service connection claim for bilateral hearing loss in January 2005.  

In August 2010, he underwent VA audiology examination.  At that time, he reported a history of military noise exposure involving small arms fire, heavy artillery, grenades, generators, and large forklifts.  He had significant occupational noise exposure involving small engines.  He reported no recreational noise exposure.  He described being forced to wear hearing aids at the age of 50 with difficulty understanding conversations.  Audiometric examination revealed the following puretone thresholds:

HERTZ

500
1000
2000
3000
4000
RIGHT EAR (AD)
15
15
45
40
30
LEFT EAR (AS)
15
35
55
45
40

The VA examiner diagnosed a normal sloping to moderately-severe rising to mild sensorineural hearing loss in the left ear.  The examiner opined that a comparison of the Veteran's left ear hearing thresholds between the March 1991 and July 1991 audiometric examinations did not reflect a standard threshold shift.  It was further opined that the Veteran's left ear hearing thresholds were not aggravated from March 1991 and July 1991 when compared to his October 1989 audiometric examination to a significant degree.

At his hearing in April 2010, the Veteran testified to active duty periods from December 1970 to September 1972, from January 1986 to June 1986, and from February 1991 to March 1991 with intervening periods of service in the reserves.  He recalled first experiencing hearing difficulty during his first period of service on the firing range.  He heard bells after weapons training and was informed that his symptoms would resolve after a few days.  He also described exposure to constant loud noises during basic training and his reserve service due to weapons firing and explosions.  His hearing loss had progressed after this service, and first sought formal treatment in approximately 1999.  His private examiner had attributed to noise exposure, and explained that he had incurred damage to his eardrums would not self-repair.  He had civilian occupation as a small engine mechanic and had been awarded workers compensation due to his hearing loss disability.  For his reserve service, he had an MOS as a supply specialist.  

Thereafter, VA clinic records include a July 2012 audiology consultation which included the Veteran's report of a gradual onset of hearing loss over a 30-40 year period.  The examiner diagnosed sensorineural hearing loss of combined types.

After receipt of additional evidence in the form of the Veteran's worker compensation records, the August 2010 VA examiner offered an addendum opinion in September 2012 which stated that a comparison of the October 1989 and July 1991 examinations did not reflect a significant worsening threshold shift in the left ear.  It was indicated that the March 1991 examination could not be located in the Veteran's claims folder, but that the claims folder had an examination report was marked as March 1991 with a Post-It tab.

Here, the available audiometric data do not reveal a hearing loss disability during the Veteran's periods of active from December 1970 to September 1972 and from January 1986 to June 1986.  Notably, the Veteran's audiometric findings upon discharge in September 1972 demonstrated no impairment of auditory acuity with 0 decibels recorded in all frequencies tested.

The Veteran's October 1989 reserve examination first demonstrated left ear hearing loss, per VA standards, measured by audiometric examination.  This audiometric examination contains clear and unmistakable evidence that left ear hearing loss pre-existed the period of active service from February to March 1991.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.385.

The STRs next reflect that, in February 1991, the Veteran reported hearing difficulty upon his entrance into this period of active service.  Audiometric testing was not conducted until March 1991.  When compared to the October 1989 audiometric examination, these audiometric findings reflected a 5 decibel downward puretone threshold shift for the frequencies of 1000, 2000, and 3000 hertz, a 10 decibel downward puretone threshold shift for the 4000 hertz frequency, and an improved 5 decibel shift for the 6000 hertz frequency.

The Veteran next went audiometric examination in July 1991 for the Army reserves.  When compared to the October 1989 audiometric examination, these audiometric findings reflected a 5 decibel downward puretone threshold shift for the frequencies of 2000 and 3000 hertz, a 10 decibel downward puretone threshold shift for the 4000 hertz frequency, and an improved 10 decibel shift for the 6000 hertz frequency.

A VA examiner upon review of the entire record, to include the Veteran's reported noise exposure history and symptomatology, has provided opinion that the threshold shifts between the October 1989 Army reserve examination, the March 1991 active duty examination and the July 1991 Army reserve examination do not demonstrate a standard threshold shift to demonstrate any aggravation of left ear hearing loss disability during the brief period of active service from February to March 1991.

On the other hand, the Veteran has provided his own opinion that his left ear hearing loss began during his period of active service from December 1970 to September 1972 and gradually progressed thereafter.  The Veteran is clearly competent to describe his perception of decreased left ear hearing acuity since 1972, but his current recollections are greatly outweighed by the objective and measured audiometric findings of left ear hearing acuity upon separation in April 1972, which measured no puretone threshold deficits in any frequency measured. 

The Veteran also provides his own opinion that his left ear hearing loss is due to his military-related noise exposure.  Generally, the Veteran does not appear to be competent to address a medical issue involving an injury to an organic disease of the nervous system.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2).  In any event, the probative weight of his personal opinion is greatly outweighed by the opinion of the VA examiner, who as a licensed audiologist, possesses greater training and expertise than the Veteran to speak to the issues of medical diagnosis and etiology of sensorineural hearing loss.

The Board also acknowledges the Veteran's recollections that his private physician has attributed his hearing loss to noise exposure.  Clearly, the Veteran is competent to relay what he has been told by any individual, to include a medical doctor.  See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran's recollections are credible and corroborated as an otolaryngologist in 2000 did attribute the Veteran's sensorineural hearing loss to noise exposure.  However, that physician only discussed the Veteran's civilian noise exposure.  Additionally, a July 2010 examiner noted that the Veteran experienced decreased hearing acuity in the context of military noise exposure.

Nonetheless, the probative value of the Veteran's recollections and the examiner statements in 2000 and 2010 is greatly outweighed by the opinion of the VA examiner in August 2010 with an addendum in September 2012.  In this respect, the Board cannot determine from the Veteran's recollections or the examiner statements the scope of the evidence reviewed, or any specific reasoning which attributes the left ear hearing loss to military noise exposure.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a probative medical opinion should support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).  On the other hand, the VA examiner opinion is based upon review of the entire claims folder to include, importantly, actual audiometric findings.

The Board finally notes that the Veteran has not specifically alleged a specific event, injury or time period during ACDUTRA or INACDUTRA service which has caused and/or aggravated his left ear sensorineural hearing loss.  As such, the Veteran has not met his burden of proof to establish injury or disease during a period of ACDUTRA or INACDUTRA service.  Smith, 24 Vet. App. 40, 45 (2010).

In conclusion, the Board finds that the most competent and credible evidence of record shows that 1) the Veteran's left ear sensorineural hearing loss did not manifest during his periods of active service from December 1970 to September 1972 and from January 1986 to June 1986, or to a compensable degree within one year of service separation from these periods of active service; 2) the Veteran's left ear sensorineural hearing loss is shown to have clearly and unmistakably existed prior to his period of active service from February 1991 to March 1991, and clearly and unmistakably was not aggravated during this period of service; and 3) the Veteran's left ear sensorineural hearing loss is not shown to have been incurred 

during a period of ACDUTRA or INACDUTRA.  There is no doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for left ear sensorineural hearing loss is denied.



____________________________________________
NEIL T. WERNER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs