Citation Nr: 1330917	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  06-38 903	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a right ear hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 to September 1971.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

This matter initially came before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  In that decision, the RO, among other things, denied entitlement to service connection for bilateral hearing loss disability.

In accordance with the appellant's request, the Veteran was scheduled for a video conference hearing on August 24, 2010, however, he failed to appear.  Hence, his hearing request is considered withdrawn.  38 C.F.R. § 20.704(d) (2012).

In October 2010, the Board denied entitlement to service connection for a left ear hearing loss disability (which is therefore no longer before the Board) and remanded the claim of entitlement to service connection for a right ear hearing loss disability to the RO, via the Appeals Management Center (AMC), for additional development.  The Board again remanded the claim to the RO, via the AMC, in January 2012 and April 2013.  For the reasons stated below, the RO/AMC complied with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

A current right ear hearing loss disability is unrelated to in-service acoustic trauma.


CONCLUSION OF LAW

A right ear hearing loss disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in October 2005 and November 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in August 2013.

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  As indicated below, the Board's most recent remand instructed that the Veteran be afforded a new VA audiological examination which was conducted in June 2013.  For the reasons indicated below, the examination was adequate and complied with the Board's remand instructions.

The Board will therefore proceed to the merits of the appeal.

Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In Walker, the Federal Circuit noted without extensive discussion that because the Veteran sought entitlement to service connection for bilateral hearing loss disability, a disease not listed as a chronic disease in the statute or regulation, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) were inapplicable.  Id. at 1340.  The Federal Circuit recently reaffirmed this view in an unpublished decision.  See Jackson v. Principi, No. 2012-7179, 2013 WL 2461843, at *3-4 (Fed. Cir. June 10, 2013).  

VA policy, however, is to consider sensorineural hearing loss as an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation.  See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system).  See also VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a (June 5, 2012) ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R.  3.309(a)").  The Board will therefore consider the Veteran's bilateral hearing loss disability to be a chronic disease until the conflict between the Federal Circuit's language and VA policy is specifically addressed by the Federal Circuit.

For the 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; 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.  Hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385.  Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007).  

In this case, at the Veteran's August 1971 separation examination, pure tone thresholds in the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
N/A
15

The Veteran's right ear hearing was therefore normal at separation.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels).  Moreover, hearing loss was not otherwise noted in service.  Consequently, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b), which presume a notation or other indication of the chronic disease in service, are not for application.

The question remains, however, whether the Veteran has a current right ear hearing loss disability that is related to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability).  The Veteran contends that he was exposed to acoustic trauma during service.  His service personnel records show service in Vietnam.  These records also document service as a rifleman, and light and heavy vehicle mechanic both of which would have exposed the Veteran to acoustic trauma.  

As to whether the Veteran has a current right ear hearing loss disability, there is conflicting evidence.  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The Veteran filed his claims for service connection for right ear hearing loss disability in October 2005.

The evidence supporting the existence of a current right ear hearing loss disability includes an October 2006 private audio evaluation performed at the Columbus Speech and Hearing Center was in graph format.  Interpreting that graph reveals pure tone thresholds of 40 decibels at 2000 and 4000 Hertz.  Speech recognition scores were 100 percent in each ear, and the diagnosis was mild to moderate conductive right ear hearing loss.  A May 2007 VA audio treatment consult indicated that, in the right ear, the pure tone threshold at 4000 Hertz was 40 decibels, speech recognition scores were 96 percent in each ear, and the diagnosis was sensorineural hearing loss of combined types.

In contrast, on the January 2012 VA audiological examination, the examiner indicated for all pure tone thresholds could not test ("CNT").  The examiner indicated that the frequencies could not be tested because the pure tone thresholds obtained for both ears were deemed unreliable and would not be reported.  The reason for this finding was that speech reception thresholds were obtained at 50 decibels for the right ear and 25 decibels for the left ear, but pure tone averages were 91 decibels for the right ear and 66 decibels for the left ear, which suggested poor pure tone test reliability.  In addition, an OAE screen was passed in the left ear at 2000 Hertz and the pure tone threshold obtained at this frequency did not correspond, suggesting poor pure tone test reliability.  Similarly, the examiner found that she could not perform speech discrimination tests because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate.

Finding the evidence insufficient to render a decision on the claim, the Board in January 2012 remanded the claim to provide the Veteran another VA audiological examination, with reliable audiometric testing for puretone thresholds and of Maryland CNC speech recognition scores, and an opinion as to whether the Veteran had a right ear hearing loss disability by VA regulatory standards.

At the June 2013 VA-authorized examination, pure tone thresholds in the right ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
90
85
90
90
90

The examiner found, however, that the test results were not valid for rating purposes, i.e., not indicative of organic hearing loss, because the puretone responses were exaggerated, and were not consistent with speech reception thresholds for both ears.  Specifically, the speech reception thresholds showed a moderate hearing loss for speech, and pure tone testing showed a severe to profound hearing loss from 250 to 8000 Hz, despite the fact that the Veteran was re-instructed three times during pure tone testing.  The examiner also found that the use of the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate.  Audiological findings included that the examiner was unable to maintain seal with regard to immittance (tympanometry).  The diagnosis with regard to the right ear was sensorineural hearing loss.

The examiner reviewed the claims file, recounted the relevant evidence, and concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service.  The rationale was that the Veteran had normal hearing bilaterally when he separated from the military, and his current hearing loss was non-organic due to exaggerated responses during pure tone testing.  The examiner added that an opinion should not be given pertaining to the Veteran's hearing loss due to inconsistent results.  Specifically, speech reception thresholds were not consistent with pure tone testing and word recognition scores were inconsistent with his conversation ability during case history.  The examiner noted that the Veteran was able to understand and answer her questions without visual cues and with a soft conversational voice being used.

While there is conflicting evidence as to whether the Veteran has a current right ear hearing loss disability, the Board will assume that he does suffer from such a loss for the purpose of this decision.  Thus, the remaining question is whether there is a relationship between that disorder and service.  For the following reasons, the Board finds that there is not.

Neither the private nor VA treatment notes finding a right ear hearing loss disability contain an opinion addressing whether this disability is related to in-service acoustic trauma.  The only medical opinion on this question is that provided by the audiologist who conducted the June 2013 VA examination.  That examiner found that the current right ear hearing loss was not likely related to service.  She based this opinion on the normal hearing at separation and the fact that the Veteran's hearing loss was non-organic due to exaggerated responses during pure tone testing.  This opinion has some probative value.  The audiologist did not find a lack of nexus based only on normal hearing at separation; rather she also noted the test results.  Moreover, given her thorough review and recitation of the evidence of record, the Board interprets her conclusion as being based on all of the evidence of record.  See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  In addition, there is no other medical opinion of record.  The medical evidence therefore weighs against a nexus between the current right ear hearing loss disability and in-service acoustic trauma.

The Board must also consider the lay evidence.  The Veteran has generally asserted that he was exposed to loud noises in service and that his current right ear hearing loss is related to in-service acoustic trauma.  To the extent that the Veteran is competent to opine on this complex medical matter, the specific, reasoned opinion of the audiologist who conducted the June 2013 VA examination is of greater probative weight than the Veteran's general lay assertions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

As noted, service connection based on a continuity of symptomatology is not warranted under 38 C.F.R. § 3.303(b) because of a lack of notation of hearing loss in service.  To the extent that such continuity is relevant to the nexus analysis, neither the lay nor medical evidence supports continuity of hearing loss symptomatology.  The Veteran did not specifically indicate that he experienced continuity of symptomatology.  The May 2007 VA audiology note reflects that the Veteran indicated that there was a gradual decrease in hearing over 25 years, which places the onset of hearing loss around 1982, more than 20 years after service.  In addition, the Veteran indicated at his August 1971 separation examination report that he did not have and had never had a hearing loss.  The evidence thus reflects a lack of continuity of symptomatology.

For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for a right ear hearing loss disability.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C.A. § 5107(b).


ORDER

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



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

Department of Veterans Affairs