Citation Nr: 1329055	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  10-13 542	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from October 1971 to October 1974.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the St. Paul, Minnesota RO.  In March 2012, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the claims file.  At the hearing the Veteran requested, and was granted, a 60 day abeyance period for submission of additional evidence.  In July 2012, the Board sought a VHA medical advisory opinion on the matter, which was received in August 2012.  Following the receipt of an additional private medical opinion, the Board sought a VHA medical clarification opinion, which was received in May 2013.


FINDINGS OF FACT

The Veteran's current bilateral hearing loss was not manifested in, and is not shown to be related to, his service.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

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

The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claim.  A January 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria.  He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate.  At the March 2012 videoconference Board hearing before the undersigned, the Veteran was advised of what he still needs to substantiate the claim; his testimony reflects that he is aware of what he still needs to substantiate his claim.  

The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The RO arranged for a VA audiological evaluation in April 2009 and a VA records review and medical opinion in August 2011: and the Board secured a VHA medical advisory opinion and clarification, which were received in August 2012 and May 2013.  These will be discussed in greater detail below, though the Board finds the examinations and opinions (cumulatively) to be adequate for rating purposes as they included both a review of the Veteran's history and audiological examinations that included all necessary findings, and cumulatively addressed all medical questions raised.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met.  
                             Legal Criteria, Factual Background, and Analysis

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; 38 C.F.R. § 3.303(a).  In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Lay evidence may be competent evidence to establish incurrence.   See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Id.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence.  See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. 

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

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

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

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

The Veteran claims that his current hearing loss arose as a result of his exposure to noise trauma in service.  His service personnel records confirm that his MOS in service was field radio repairman.  It may reasonably be conceded that he had some exposure to hazardous levels of noise in service.

The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of hearing loss.  On October 1971 service entrance examination, his hearing was within normal limits (5 to 15 decibel puretone thresholds at all thresholds between 500 and 4000 Hertz).  On September 1974 service separation examination, his hearing was also within normal limits (0 or 10 decibel puretone thresholds at all thresholds between 500 and 4000 Hertz).

In January 2009, the Veteran filed simultaneous service connection claims for hearing loss and tinnitus.  He stated that he was stationed in Germany as a radio control operator and was always subjected to loud or high pitched tones.

On April 2009 VA audiological examination, the Veteran reported being hard of hearing, right ear greater than the left, and of having tinnitus, since service.  He reported that his situation of greatest difficulty is when his wife is on his right side or when talking to his wife at home.  He reported military noise exposure including from basic training, light weapons fire, and radio noise from his work as a radio repairman.  He estimated exposure to hazardous noise during 25 percent of his tour of duty, typically impulse noise.  He reported using hearing protection only at the firing range.  He reported that after service he had no exposure to hazardous noise during his years in auto parts service work or fixing broken furnaces.  He reported non-work noise exposure including hunting/target practice (estimated as 5 years of shooting squirrels at about 50 rounds per year), lawn mowers (reported as twice per month in the summer, for over 30 years, for 60 minutes per use), chain saws (reported as three times per year, for 10 years, for 60 minutes per use), and a skid loader (reported at 8 times per year for 2 years, for 60 minutes per use); he reported using hearing protection devices when performing these activities.  He denied any significant history for chronic ear infections, ear surgery, aural fullness, vertigo, genetic predisposition for hearing loss, diabetes, cerebral vascular disease, head/ear trauma, or ototoxic medications.  He reported a history of constant bilateral tinnitus, primarily in the right ear, for over 35 years since military service with gradual onset; he stated that his tinnitus had become more noticeable with age.

Audiometry revealed that puretone thresholds, in decibels, were: 

HERTZ
500
1000
2000
3000
4000
Right 
15
15
60
60
60
Left
10
15
45
45
55

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear.  The examiner found that the Veteran's right ear showed normal hearing thresholds to 1000 Hertz, sloping to a moderately severe SNHL from 2000 to 6000 Hertz, and a severe hearing loss at 8000 Hertz.  The left ear showed normal hearing thresholds to 1500 Hertz, moderate sensorineural hearing loss at 2000 to 3000 Hertz, moderately SNHL at 4000 hertz, and a severe hearing loss at 6000 to 8000 Hertz.  The diagnosis was asymmetric high frequency SNHL, right ear poorer than left ear.  The examiner opined that the Veteran's tinnitus is as likely as not a symptom associated with his hearing loss.  The examiner opined that "IT IS NOT as least as likely as not" that the Veteran's bilateral hearing loss is partially due to military hazardous noise exposure and/or acoustic trauma.  The examiner then opined that "IT IS as least as likely as not" that the Veteran's tinnitus, mainly in the right ear, is partially due to military hazardous noise exposure and/or acoustic trauma.  The examiner explained that analysis of the audiometric thresholds on entrance and separation examinations does not show a "+STS"; the examiner noted the shifts in hearing thresholds but found that they fall within the range of normal inter-test variability commonly observed during serial pure tone air conduction testing conducted over a contiguous 2 to 3 year period and do not connote a progressive hearing loss.  The examiner noted that, by history, the Veteran's reported bilateral tinnitus is partially due to military hazardous noise exposures, with occupational, socioacusis, presbycusis, and idiopathic factors also likely implicated.  The examiner stated that tinnitus of the type described by the Veteran is a highly subjective complaint and accorded appropriate deference and credibility to the Veteran's historical recollection of its onset, progression, and aggravating factors.  The examiner noted the Veteran's statements that he was initially cognizant of his tinnitus in service subsequent to light weapons firing and opined that "it is plausible that these hazardous noise levels may have precipitated his reported tinnitus without concurrently inducing any significant permanent hearing loss or subtler cochlear/central auditory system that would manifest itself during a pure tone air conduction hearing test."  The examiner stated that, in terms of any causal relationship between the shifts noted in service and the Veteran's hearing loss, he was not aware of any widely accepted body of peer reviewed medical research that supports the notion of a time released or late onset hearing loss component secondary to hazardous noise exposure.

Based on the above, the April 2009 rating decision on appeal granted the Veteran service connection for tinnitus and denied service connection for bilateral hearing loss.

On March 2010 private audiological evaluation at Paparella Ear Head and Neck Institute, the Veteran reported longstanding hearing loss and tinnitus in the right ear.  He reported that the problem began during and after military service due to exposure to heavy artillery during basic training and constant exposure to radio noise while working in radio technology.  He reported having some degree of noise exposure in civilian life but was very careful to use hearing protection.  On physical examination, the tympanic membranes were normal.  The provider reviewed the audiometry on April 2009 VA examination showing bilateral high frequency SNHL, right slightly worse than left, with excellent speech recognition in both ears.  The assessments included sensory hearing loss and subjective tinnitus.  The treating physician opined, "Based on extensive review of the patient's history and hearing loss pattern, I believe that military exposure is related to progressive sensorineural hearing loss and tinnitus observed in both ears.  [The Veteran] will benefit from hearing aids for the hearing loss and to abate the tinnitus."

On August 2011 VA records review and opinion, the record was reviewed for clarification of the previous audiology opinion.  The reviewing physician indicated that the audiometric findings on October 1971 service entrance exam, on September 1974 service separation exam, and on April 2009 VA audiological exam.  The reviewing physician diagnosed bilateral hearing on discharge exam as normal by VA standards with no significant shift between entrance and discharge audiometric testing; the reviewing physician noted that a significant shift is defined by NIOSH as a shift of 15 decibels or greater at one or more frequencies between 500 to 4000 Hertz.  The diagnosis was sensorineural hearing impairment based on the findings on VA examination; the physician opined that the current bilateral neuro-sensory hearing loss is not due to military acoustical trauma based on normal discharge audiometric testing, with no shift found, and the following rationale: "the evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure.  Most recovery to stable hearing thresholds occurs within 30 days."  The reviewing physician noted that current science indicates that the "understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely."  The reviewing physician cited that "the conclusion from review of the research in this area is that individuals with previous noise-induced hearing loss are neither more nor less susceptible to subsequent noise-induced hearing loss than individuals without such pre-existing hearing loss."  The reviewing physician opined that if hearing is normal upon discharge from service, there is no evidence of hearing damage due to military noise exposure, and any worsening of hearing from the time of discharge to current is due to noise exposure between the times of discharge to current, noting that the literature supports this assessment even if a significant shift in hearing is found between entrance and exit audiometric testing.  The reviewing physician offered a second rationale that if no audiometric testing is documented upon discharge, it is not possible to determine if noise induced hearing damage occurred in military service.  The reviewing physician stated, "Giving the benefit of the doubt to the Veteran, the current hearing loss is due to military noise exposure."  Finally, the reviewing physician offered a third rationale that for tinnitus to be due to hearing loss, the neuro-sensory hearing loss must demonstrate a hearing los greater than 75 decibels in 2 or more Hertz thresholds.

At the March 2012 videoconference Board hearing, the Veteran's representative noted that the Veteran's separation exam showed near perfect hearing, despite the Veteran's constant exposure to high-pitched frequencies in service as a radio repair operator, wearing headphones daily as he worked.  The Veteran testified that he did not remember having his hearing tested upon separation, and he found it odd that he would be shown to have better hearing coming out of service than he did upon entering service.  The Veteran's wife testified that she and the Veteran were married within the first year after his separation from service, and she remembered him complaining of ringing in his ears at the age of 21.  She testified that his hearing has worsened over the years, causing him problems such as having to turn the television up louder and louder and being unable to hear when his car's turn signal was still on.  She testified that he told her she has to look right at him and talk very loudly in order for him to hear her.

In July 2012, the Board sought a VHA medical advisory opinion as to whether or not the etiology of the Veteran's hearing loss may be disassociated from the etiology of the [service-connected] tinnitus (which was assumed to be trauma to the acoustic nerve).  

In an August 2012 VHA opinion, audiologist Dr. Dennis opined based on a review of the claims file that it is less likely as not that the Veteran's current hearing loss is related to his military service and conceded noise exposure.  Dr. Dennis agreed with the April 2009 and August 2011 VA examiners' conclusion that there was no scientific basis on which to conclude the existence of delayed-onset hearing loss secondary to noise exposure.  Regarding the March 2010 private opinion, Dr. Dennis found it to be clearly based on medical history and the pattern of the hearing loss, without a review of the records; Dr. Dennis opined that the pattern of hearing loss is a poor indicator of etiology, noting that high frequency hearing loss can be due to a number of causes.  Dr. Dennis found the March 2010 opinion to lack probative value since it was based only on history and unreliable audiogram patterns.  
Dr. Dennis noted that the induction and separation audiograms showed normal hearing in both ears; indeed, the hearing thresholds on separation were better than those on entrance to service, although the differences were within normal measurement variability.  Dr. Dennis noted that noise exposure, but not noise trauma, was conceded on the basis of the Veteran's MOS, stating that the fact that there was a moderate probability of noise exposure does not mean that noise injury will occur.  Dr. Dennis cited the Institute of Medicine, which concluded that it was nearly impossible to determine the probability of acquiring noise-induced hearing loss during military service because of the variability in noise sources, the transient nature of military assignments, the unpredictable or incident noise exposure unrelated to a service member's occupational specialty, the sporadic use of hearing protection, and wide variations in individual susceptibility to noise; the only objective evidence for noise injury is the audiograms, and in this case they show that no noise injury occurred.  Dr. Dennis opined that there is no scientific evidence to support the existence of delayed-onset hearing loss, noting that two of the examiners above cited this conclusion by the Institute of Medicine.  Dr. Dennis noted that damage to the sensory structures, caused by traumatic noise exposure, occurs instantaneously and may or may not result in permanent hearing loss, but the Institute of Medicine found no scientific evidence to support the theory that a person with no threshold changes after being exposed to noise would develop permanent hearing loss causally related to the noise exposure many years later.

Regarding the Veteran's tinnitus, Dr. Dennis found the existing opinions of record to be ambiguous and speculative, stating that the opinion that tinnitus must be related to severe hearing loss is baseless and lacks any scientific support in the literature.  He noted that tinnitus is a symptom, and therefore one cannot completely disassociate the etiology of the tinnitus from the etiology of the underlying condition.  Dr. Dennis opined that the Veteran undoubtedly has hearing loss sufficient to cause tinnitus, and that hearing loss could have existed for a long time; however, there is no evidence in the record that the underlying hearing loss existed during military service.  Dr. Dennis determined that there is no objective evidence of service-related noise injury and therefore opined that the direct cause of the Veteran's tinnitus is unknown.

The Board then received an April 2012 private medical opinion from Dr. Froymovich, who opined that tinnitus after military noise exposure directly reflects damage to the inner ear, even though at that time threshold shifts were not seen.  He opined that a lot of hearing damage begins at very high tones and cannot be measured, and over time such loss spreads to lower tones in a gradual process; he opined that this is what occurred to the Veteran.  He opined that separating tinnitus from hearing damage is illogical.  Dr. Froymovich opined that the Veteran's hearing damage started during his military exposure and service.

Because Dr. Froymovich cited a rationale not accounted for in the August 2012 VHA opinion, the Board sought clarification.

In a May 2013 VHA clarification opinion, Dr. Dennis again reviewed the opinions of record and stated that he agreed with the April 2009 VA examiner's opinion that there is no widely accepted body of peer reviewed medical research that supports the notion of a time released or late onset hearing component secondary to hazardous noise exposure.  Dr. Dennis disagreed with Dr. Froymovich's March 2010 opinion, finding his reliance on the audiogram alone to be a weak diagnosis because the pattern of hearing loss on an audiogram is a poor indicator of etiology in cases of SNHL.  Dr. Dennis opined that an individual exhibiting a high frequency hearing sensorineural hearing loss does not indicate etiology, nor is a notching pattern pathognomonic of noise exposure.  He explained that persons with noise exposure may or may not exhibit this notching pattern, and persons that have never had exposure to traumatic levels of noise exhibit such patterns; he stated again that high frequency hearing loss can be due to other causes such as aging, occupational or recreational noise exposure, head injury, or toxicity due to medications.  Regarding Dr. Froymovich's April 2012 opinion, Dr. Dennis opined that it was pure speculation; the opinion stated that hearing loss occurred above the frequencies usually measured on an audiogram and spread to lower frequencies over time, which Dr. Dennis interpreted as stating that the Veteran's current hearing loss is due to a delayed degenerative process.  Dr. Dennis noted that Dr. Froymovich acknowledged there was no hearing loss during military service but appeared to ignore other sources of noise exposure after service (such as hunting).  Dr. Dennis opined that there is no scientific support for Dr. Froymovich's theory that hearing loss directly related to noise injury progressed without further noise exposure (after service).  Dr. Dennis opined once more based on the factual evidence of record that it is less likely as not that the Veteran's current hearing loss is related to his military service and conceded noise exposure.

It is not in dispute that the Veteran now has bilateral SNHL.  A hearing loss disability (by VA standards) was confirmed by VA audiometry.  However, as the hearing loss disability is not shown to have been manifested in service or in the first postservice year, service connection on the basis that it became manifest in service, and persisted or on a chronic disease presumptive basis (for SNHL as an organic disease of the nervous system under 38 U.S.C.A. § 1112) is not warranted.  

What remains for consideration is whether the bilateral hearing loss is somehow otherwise shown to be etiologically related to the Veteran's service.  The only competent medical evidence in this matter consists of the reports of the VA and private examinations and opinions cited above.  In essence, the VA opinions are against the Veteran's claim, while the private opinions support it.  [An alternate opinion offered by a VA reviewing physician in August 2011 also relates the Veteran's hearing loss to acoustic trauma in service.  However, the rationale provided for that opinion is premised on there being no audiometry, in which case resolving reasonable doubt in the Veteran's favor, i.e., conceding that audiometry would have been abnormal, a remote postservice-appearing hearing loss could be related to noise trauma in service.  As there was separation examination audiometry in the instant case, that opinion has no applicability, and is without probative value.]

The Board finds the VA examinations and advisory medical opinions to be entitled to great probative weight, as they reviewed the Veteran's entire medical history and statements included in the claims file, reviewed all earlier audiometry and audiological evaluations/opinions, and explained in full the rationale for the conclusions reached, citing to accurate factual data, considered all possible etiological factors for the Veteran's hearing loss, explaining the reason why the evidence supported one factor more than others, and cited to a lack of support in medical literature for a nexus between a fairly recent appearing hearing loss and remote noise trauma, and the lengthy intervening period between any noise exposure during the Veteran's service and his current hearing loss before hearing loss complaints were noted postservice.  Significantly, the VHA expert cited to a medical publication by the Institute of Medicine, and directly addressed the rationale in the opinion by the Veteran's private provider, Dr. Froymovich, noting that he had not acknowledged/did not account for the Veteran's postservice exposure to noise trauma.  Furthermore, the VHA expert observed that pattern of hearing loss (cited by Dr. Froymovich in his explanation of rationale) is a poor indicator of hearing loss etiology.  The VHA expert also opined that the private opinion is based on speculation, and that there is no support in medical literature for the proposition, by Dr. Froymovich, that hearing loss due to noise trauma in service progresses postservice (without further noise trauma).  Notably, Dr. Froymovich does not cite to supporting medical literature.   

In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim.  Therefore, the appeal in this matter must be denied.


ORDER

Service connection for bilateral hearing loss is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs