Citation Nr: 1321041	
Decision Date: 07/01/13    Archive Date: 07/12/13

DOCKET NO.  09-06 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel 


INTRODUCTION

The Veteran had active service from February 1968 to February 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In his February 2009 substantive appeal, the Veteran requested a video-conference hearing before a Veterans Law Judge.  A hearing was scheduled for April 2009, but in March 2009 he requested that the hearing be cancelled.  Therefore, the Board finds his request for a hearing has been withdrawn.  38 C.F.R. § 20.702(e) (2012).

In January 2013, the Board requested the opinion of a specialist from the Veterans Health Administration (VHA).  The requested opinion was received and in April 2013, the Board provided the Veteran a copy of that opinion and afforded him an opportunity to submit additional evidence or argument within 60 days of the date of that letter.  In a signed statement received at the Board later that month, the Veteran stated that he had no further evidence or argument to present.  Accordingly, the Board will proceed with the consideration of his case.

The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim.  A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal.

The issue of entitlement to service connection for skin rash was explicitly claimed by the Veteran in his original application dated February 8, 2007, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 


FINDING OF FACT

A hearing loss disability was not shown during service or within one year of separation, and the most probative medical evidence fails to link his current bilateral hearing loss to service.

CONCLUSION OF LAW

The requirements for establishing service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this case, a February 2007 letter sent prior to the decision on appeal provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  It also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), a letter from a private hearing aid dealer and fitter, and VA examination reports.  The Veteran was also afforded two VA examinations in August 2007 with respect to the issue decided herein and a VHA medical opinion was obtained.  The Board finds that VA's duty to assist with respect to obtaining VA examinations and opinions regarding the issue decided herein has been met.  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument and presenting for VA examinations.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). 

II.  Analysis

The Veteran seeks service connection for bilateral hearing loss.  He contends that his current bilateral hearing loss is due to excessive noise exposure during active service.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and an organic disease of the nervous system manifests to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a).

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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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.  However, "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id.  

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all the evidence in the record.  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 appellant 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 contends that he developed his currently-diagnosed bilateral hearing loss as the result of exposure to excessive noise during service.  Specifically, his primary military occupational specialty (MOS) was equipment storage specialist, and he worked in warehouses, operating forklifts and moving heavy machinery.  He reported to the 2007 VA examiner that in training he fired a machine gun and an M16, and he was occasionally exposed to gunfire.  He also reported that he had no hearing protection during service.

The Board notes that the Veteran is competent to report a history of in-service noise exposure.  38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  Moreover, his assertions as to noise exposure are considered credible as they are consistent with his documented MOS.  Evidence submitted by the Veteran shows that the Department of the Army classified his MOS (76V) as an occupation involving routine exposure to hazardous noise.  Accordingly, the Board finds that the Veteran was exposed to hazardous noise in service.

The Veteran's service treatment records contain three audiograms.  The first was conducted in August 1967 as part of the Veteran's entrance examination.  Pure tone threshold levels, in decibels, were as follows: 

HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
10
N/A
0
LEFT
10
10
5
N/A
0

The second audiogram was conducted in March 1969 in response to the Veteran's complaint of tinnitus and a feeling of decreased hearing.  The audiogram was interpreted as showing normal hearing.  

The third audiogram was conducted in December 1969 as part of the Veteran's separation examination.  Pure tone threshold levels, in decibels, were as follows: 

HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
N/A
10
LEFT
10
10
10
N/A
10

An audiogram conducted during the August 2007 VA audiological examination showed pure tone threshold levels, in decibels, as follows: 

HERTZ
500
1000
2000
3000
4000
RIGHT
35
35
40
45
35
LEFT
25
35
45
50
55

Speech discrimination testing was 100 percent in the right ear and 98 percent in the left ear.  

The August 2007 audiological examination noted the audiologist's review of the Veteran's claims file, including STRs.  He noted the Veteran's operation of a forklift in a warehouse, and subsequent employment as a sales manager, which involved no occupational noise exposure.  The Veteran had some recreational noise history for motorcycles and hunting.  The audiologist stated that the symptoms described in the March 1969 STR are consistent with a Eustachian tube dysfunction, and noted that the audiogram showed normal hearing.  He also noted the complaint of tinnitus in March 1969 and at discharge.

Examination in August 2007 showed air-bone gaps bilaterally and the right ear had symptoms consistent with Eustachian tube dysfunction.  The audiologist diagnosed mild to moderately severe mixed hearing loss in the right ear, and normal to severe mixed hearing loss on the left.  He concluded that the symptoms were consistent with periodic Eustachian tube dysfunction coexisting with sensorineural hearing loss (SNHL).  He stated that military noise exposure was limited generally to forklifts and warehouse noise which was most likely insufficient to cause this type and degree of hearing loss.  Taken together with the three normal audiograms in the STRs, the audiologist opined that the Veteran's hearing loss was less likely than not related to his in-service noise exposure.

The August 2007 report of the Veteran's VA ear disease examination also noted his review of the Veteran's claims file, including STRs.  He noted the Veteran's MOS and noise exposure moving heavy equipment, with occasional exposure to gunfire during training and service.  The Veteran denied occupational noise exposure post service, and had not hunted since service.  He did have some noise exposure without hearing protection from using leaf blowers, lawnmowers, and weed eaters.  After physical examination, the examiner stated bilateral high-frequency SNHL and tinnitus were secondary to ear disease; however there was no current ear disease present.  The examiner opined that the Veteran's hearing loss was less likely than not related to his in-service noise exposure.  His rationale was that the Veteran was not exposed to a great deal of noise in military service, and his separation audiogram was normal.

Mr. D.I., a licensed hearing aid dealer and fitter, conducted an evaluation of the Veteran in April 2011.  The Veteran reported that he worked with heavy and loud equipment during service, without hearing protection.  Mr. D.I. reviewed an unspecified audiogram and stated that it showed moderately severe to severe sloping hearing loss in both ears.  He stated that "with sixty percent or more confidence" this type of hearing loss is most likely caused by loud noise exposure.  He concluded that in-service noise exposure was a contributing factor to the Veteran's hearing loss.

A VHA specialist who has appropriate expertise in addressing the existence and etiology of hearing loss provided an opinion in February 2013 based on a thorough review of the claims file, including service treatment records, VA examination reports, and private treatment record.  He noted that the Veteran has been repeatedly diagnosed with SNHL, and agreed with that diagnosis.  He opined that the Veteran's current SNHL is not related to Eustachian tube dysfunction.  His rationale began with the fact that there is no documented Eustachian tube dysfunction in service, and that the only evidence of any potential such dysfunction is in the 2007 VA examination where a type C tympanogram indicated negative pressure in the right middle ear.  He explained that while Eustachian tube dysfunction can be a chronic condition, the negative pressure in the middle ear can also be related to a temporary condition such a head cold.  He stated that while Eustachian tube dysfunction can cause a small conductive hearing loss, it does not cause SNHL.  He opined the Veteran's current SNHL is not due to any Eustachian tube dysfunction, much less a dysfunction that was not documented in service.

The VHA specialist also opined that the Veteran's current hearing loss is not likely due to excessive in-service noise exposure.  His rationale was that there is no evidence of damage to the hearing from acoustic trauma in the service.  He cited to the study "Noise and Military Service - Implications for Hearing Loss and Tinnitus" Institute of Medicine, National Academy of Sciences (2006).  That study concluded that there is no reasonable basis for delayed-onset hearing loss from noise exposure.  He stated the Veteran had normal hearing at enlistment, during service in March 1969, and at separation in December 1969.  Thus, "given that hearing was normal at separation, with no significant shift in hearing compared to enlistment, it is unlikely this hearing loss is related to hazardous noise exposure from the service."

Upon review of the record, the Board finds that service connection for bilateral hearing loss is not warranted.  The Veteran currently suffers from a hearing loss disability pursuant to 38 C.F.R. § 3.385.  However, the preponderance of the evidence is against a finding of service connection.  

Objective testing shows that the Veteran did not have a hearing loss disability in service.  While he did have a complaint of a feeling of decreased hearing in March 1969, audiological testing during service revealed hearing within normal limits.  Moreover, the Veteran reported to the VA examiner in August 2007 that he was not really aware of a hearing loss at the time of discharge from service.  Thus, the competent and probative evidence does not show a hearing loss disability during service.  Further, the first post service objective evidence of hearing loss was in 2007, more than 35 years after discharge from service.  Thus, service connection on a presumptive basis is not warranted. 

As hearing loss disability was not shown in service or within a year of discharge, in order to establish service connection, the evidence must establish that the Veteran's current hearing loss is related to his military service.  On this question, there is an opinion from a licensed hearing aid dealer and fitter in favor of the claim, and several VA medical opinions against the claim. 

The Board finds the VHA specialist's opinion that the Veteran's hearing loss is not related to noise exposure in service or otherwise related to service is entitled to greatest probative weight.  His opinion is predicated upon a thorough, accurate review of the record, to include the statements of the Veteran, and is supported by a sufficient rationale, relying on and citing to the records reviewed.  The VHA specialist acknowledged the Veteran's excessive in-service noise exposure and considered whether a Eustachian tube dysfunction existed in service or presently but explained why these did not cause his current hearing loss.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  

With respect to the opinions from the 2007 VA examiners, the Board accords them less probative weight as both examiners tended to minimize the Veteran's noise exposure in service, although did accept that he was exposed to some excessive noise.  Their opinions were also based on the objective findings during service, and are consistent with the VHA specialist's opinion in that regard. 

With respect to the opinion by Mr. D.I., although he is licensed by the North Carolina State Hearing Aid Dealers and Fitters Board, he is not a state-licensed audiologist or a physician.  It is also unclear what documents he reviewed in forming his favorable opinion, as he referred to only one unspecified audiogram.  He does not mention the normal audiograms in the service treatment records, suggesting that he did not review the claims file.  Moreover, he did not explain how noise exposure 35 years ago caused the current hearing loss.  Conversely, the VHA specialist cited to a medical treatise noting that hearing loss from noise exposure is not of delayed onset.  Accordingly, the Board accords less probative weight to the opinion of Mr. D.I.  See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Although the Veteran believes his current hearing loss is related to service, there is no indication that he has specialized training in diagnosing audiological disorders or determining their etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis of the various forms of hearing loss requires medical testing to identify, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology.  Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current hearing loss is a matter that requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.").  Thus, the Veteran's opinion regarding the etiology of his current hearing loss is not competent medical evidence.  On this question, the Board finds the opinion of the VHA specialist to be of significantly greater probative value than the lay opinion of the Veteran.

In summary, the most probative evidence reveals that the Veteran did not have a hearing loss disability during service or for many years thereafter, and the most probative evidence indicates his current hearing loss disability is not related to service.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim and entitlement to service connection for bilateral hearing loss is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs