Citation Nr: 1320820 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-42 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for bilateral hearing loss on a direct basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to December 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied service connection for bilateral hearing loss. The rating decision also denied VA compensation under 38 U.S.C.A. § 1151 for residuals of Gentamicin toxicity, to include vertigo, kidney problems, tremor, memory loss and increased bilateral hearing loss. In a December 2011 decision/remand, the Board remanded the 1151 issue. A September 2012 rating decision granted VA compensation under 38 U.S.C.A. § 1151 for residuals of Gentamicin toxicity, to include vertigo, kidney problems, tremor and memory loss. In the December 2011 decision/remand, the Board also denied service connection for bilateral hearing loss on a direct basis. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion) in July 2012. By order dated in July 2012, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. The Board remanded the issue on appeal in February 2013 for additional development. The case is now before the Board for final appellate consideration. FINDING OF FACT The Veteran's bilateral hearing loss is not etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss on a direct basis have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a February 2008 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, the transcript of a July 2009 hearing before a Decision Review Officer, and the transcript of an August 2011 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The development requested by the Board's February 2013 remand has been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA conducted examinations in July 2008 and March 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations conducted in this case are more than adequate. Their reports consider the Veteran's statements and the current examination results, and provide rationales for the opinions offered. Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Board points out that the absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hensley also provides that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability. In addition, VA Training Letter 10-02, issued in March 2010 regarding the adjudication of claims for hearing loss, provides that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 211D (10-02) (March 18, 2010). In that letter, the Director of the VA C&P Service stated that "whispered voice tests... cannot be considered as reliable evidence that hearing loss did or did not occur." Id. 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). The Veteran seeks entitlement to service connection for bilateral hearing loss, which he contends he has had ever since military service either as a result of acoustic trauma sustained while working as a combat engineer/builder in the Seabees, or as a result of inservice otitis externa. He has described exposure to explosives, heavy equipment, machinery, welding and excavating equipment, and masonry and carpentry equipment. The Veteran asserts that he did not use any hearing protection in service, but did use it when around occupational (construction industry) and recreational (hunting) noise exposure. See January 2008 statement in support of claim; July 2009 and August 2011 transcripts. The Veteran's service treatment records reveal that he was seen with complaint of deafness in his right ear in March 1973, at which time he was found to have right otitis externa. There were no other complaints of problems with hearing acuity and at the time of his discharge from service in December 1975, clinical evaluation of the Veteran's ears and drums was normal and he exhibited 15/15 on whispered and spoken voice testing, bilaterally. See report of medical examination. Post-service medical evidence of record reveals that the Veteran was seen in March 1999 for an audiological evaluation at the Dartmouth Hitchcock Medical Center. In pertinent part, he described a recent (six to eight weeks) history of decreased hearing, which seemed to be more pronounced in his left ear. In regards to complaints of tinnitus, the Veteran reported noise exposure to guns and machinery but indicated that he had not had any significant noise exposure in the last four years. The Veteran also reported that he had not had his hearing assessed since childhood but felt that his hearing was excellent prior to the recent noted change. Audiometric testing was conducted and the Veteran was diagnosed with bilateral sensorineural hearing loss with left asymmetry. The examiner recommended further investigation to rule out 8th nerve or retrocochlear involvement and noted that the examiner wanted to see an ENT such that an appointment had been scheduled for March 26. In March 1999, the Veteran was seen with complaints of tinnitus. At that time, he reported some noise exposure in his lifetime working construction around engines, saws, jack hammers and also gunfire during his term in service. There was no specific trauma to either ear and no past otologic history of disease was noted. The examiner noted that recent audiologic evaluation demonstrated borderline normal thresholds in the right ear through 2000 Hz dropping to a moderate sensorineural hearing loss. The left ear was symmetrical through 3000 Hz and then asymmetrical 4000 through 8000. Speech discrimination was 96 percent in the right ear and 92 percent in the left. The impression was unilateral otologic symptoms of tinnitus, aural fullness and sensorineural hearing loss in the high frequencies. An MRI was ordered. See record from the Hitchcock Clinic. The MRI report dated in April 1999 indicates that it was to rule out acoustic neuroma; the impression was normal head MRI. Specifically, there were no enhancing cerebellopontine angle masses. See record from Mary Hitchcock Memorial Hospital. A September 2007 VA treatment record contains an assessment of hearing loss, which was noted to be a chronic problem as it had been present for many years. Weber and Rine results were most consistent with sensorineural hearing loss (partial) on the left side. The examiner noted that it was most likely age/noise related hearing loss. See medical student note. The Veteran underwent a VA audio examination in July 2008, at which time his claims folder and medical records were reviewed. The examiner noted that audiometric data was available from his military enlistment and that hearing was normal, bilaterally, in 1972. The examiner also noted that at the time of his 1975 separation from service, the Veteran had a whispered voice test and passed it with 15/15 bilaterally. The examiner indicated that this test is not a measure of threshold at individual frequencies but if administered properly, has strong sensitivity and specificity for hearing loss through 2000 Hz. The examiner cited Swan and Browning, 1986, for that proposition. The examiner also reported that there was audiometric data from Dartmouth Hitchcock Medical Center from 1999, at which time the Veteran underwent a complete audiological evaluation and was diagnosed with normal hearing 250 to 2000 Hz sloping to a moderate sensorineural loss 3000 to 8000 Hz bilaterally. In the audiological report it stated that the Veteran had a "recent 6-8 weeks, history of decreased hearing and increased bilateral tinnitus" and that the Veteran had felt his hearing was excellent "prior to the recent change." The examiner also noted that the Veteran had been treated with Gentamicin in September 2007. The Veteran reported military noise exposure due to construction, builder third class, carpentry and heavy equipment operator. He reported occupational noise exposure in construction and as working as a janitor and a cook, and recreational noise exposure in the form of motorcycling and hunting. The Veteran reported that the onset of hearing loss was first diagnosed in 1999 but that he believed it had started six to eight years before that. He indicated that it had been a gradual onset but worsened in September 2007 after being treated with Gentamicin. The authorized audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 60 65 LEFT 30 35 40 70 75 The examiner noted normal middle ear function. Right ear otoscopy was unremarkable and type A tympanograms with normal ear canal volume, pressure and compliance was obtained. The examiner could not obtain a seal for acoustic reflex testing. A speech reception threshold was obtained at 42 dBHL. Pure tone air and bone conduction threshold testing revealed a mild sloping to moderately severe sensorineural loss. Word recognition was excellent with 96 percent correct at 80 dBHL. Left ear otoscopy was unremarkable and type A tympanograms with normal ear canal volume, pressure and compliance was obtained. The examiner could not obtain a seal for acoustic reflex testing. A speech reception threshold was obtained at 44 dBHL. Pure tone air and bone conduction threshold testing revealed a mild sloping to severe sensorineural loss. Word recognition was 90 percent correct at 80 dBHL and 92 percent correct at 85 dBHL. The Veteran was diagnosed with right sensorineural hearing loss described as mild to moderately severe and left sensorineural hearing loss described as mild to severe. The examiner again noted that the Veteran's hearing was normal at enlistment, that he passed a whispered voice test at separation and that although this test does not measure individual frequencies, "if administered properly, the whisper test has strong sensitivity and specificity for hearing loss through 2000 Hz." In 1999, the Veteran had his hearing tested and in the progress note from that visit, it stated that he first noticed a decrease in hearing six to eight weeks prior (around January 1999). The progress note also stated that the Veteran felt his hearing was "excellent" prior to the recent change. The examiner noted that at the time of the examination, the Veteran stated that he first noticed hearing loss in the early 1990s, maybe around 1991 or 1993. Based on the information found in the claims folder and his own reported onset of loss, it was the examiner's opinion that it is less likely as not that military noise exposure contributed to his hearing loss. If his military service had caused hearing loss it would have been present at his military separation, and the Veteran did not notice any difficulty hearing until the 1990s. The report of a March 2013 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran had bilateral hearing loss for VA purposes. The resulting diagnosis was bilateral sensorineural hearing loss (in the frequency range of 500-4000 Hz) and bilateral sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies). The examiner provided the opinion that the Veteran's hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner noted that in 2008 it was opined that the Veteran's hearing loss was less likely than not related to military service noise exposure. The examiner stated that the specific question he was asked to address was whether the Veteran's hearing loss was related to documented inservice otitis externa. The examiner explained that the Veteran's hearing loss was sensorineural in nature. External otitis externa does not cause sensorineural hearing loss, only conductive hearing loss. The evidence of record does not support the Veteran's claim. The Board acknowledges the Veteran's assertions regarding in-service noise exposure, and finds that these assertions are both competent and credible. See Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Board will concede that the Veteran was exposed to acoustic trauma during service. The Veteran is also competent to report that bilateral hearing loss has existed from active duty service to the present. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board does not find the Veteran's statements to be credible with respect to experiencing symptoms of bilateral hearing during and continuing since service. The Veteran did not complain of bilateral hearing loss or a decrease in hearing acuity at the time of his separation examination in December 1975. Moreover, the Veteran reported problems with hearing for six to eight weeks, not since service, in March 1999. See record from Dartmouth Hitchcock Medical Center. At the time of his July 2008 VA audio examination, he again did not report problems with loss of hearing since service, but indicated that it had started six to eight years prior to being diagnosed in 1999 (early 1990s). These records have greater probative value than the history as more recently reported by the Veteran. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). Additionally, the July 2008 and March 2013 VA medical opinions took the Veteran's history and complaints into account and did not relate his bilateral hearing loss to service, to include the in-service acoustic trauma or otitis externa. These opinions were based on current examination results and reviews of the medical record. The examiners explained their opinions with references to the Veteran's active duty and post-service medical history. The July 2008 VA opinion was based primarily on the Veteran's own reports as to when his hearing loss onset, specifically the March 1999 private record in which it was noted that he first noticed a decrease in hearing six to eight weeks prior (around January 1999) and that his hearing had been excellent prior to this change, and his report at the time of the July 2008 VA examination that he first noticed hearing loss in the early 1990s. The examiner also noted that if the Veteran's military service had caused hearing loss, it would have been present at his military separation, but the Veteran did not notice any difficulty hearing until the 1990s. The March 2013 VA opinion analyzed the Veteran's active duty and post-service medical history in terms of medical principles. In the Board's judgment, the references made by the VA opinions result in convincing rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board recognizes that, to the extent that the July 2008 negative opinion is based on the absence of in-service evidence of hearing loss, it is contrary to Hensley, supra, and Ledford, supra. However, the VA examiner also explained her negative opinion by referring to the long delay between the Veteran's separation from service and the beginning of his hearing loss. This rationale is not contrary to Hensley, supra, and Ledford, supra, and thus the Board finds that it constitutes probative evidence against the Veteran's claim. In addition, there is no evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and his current disability. See Henley, supra. The Board also recognizes that, to the extent that the July 2008 negative opinion is based on the Veteran's normal whispered voice test at separation, it is contrary to VBA Training Letter 211D (10-02). Again, however, the VA examiner also explained her negative opinion by referring to the long delay between the Veteran's separation from service and the beginning of his hearing loss. This rationale is not contrary to VBA Training Letter 211D (10-02), and thus the Board finds that it constitutes probative evidence against the Veteran's claim. The Board finds it significant that there is no medical evidence to the contrary of the July 2008 and March 2013 VA medical opinions. In the absence of competent and credible evidence establishing an etiological relationship between active service and bilateral hearing loss, service connection is not warranted and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Service connection for bilateral hearing loss on a direct basis is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs