Citation Nr: 1333315	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  06-12 714	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

The Veteran had active service from January 1974 to April 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Roanoke, Virginia.

On his substantive appeal, the Veteran requested a Travel Board hearing.  Subsequently, in February 2008, the Veteran filed a written request to cancel the scheduled Travel Board hearing.  Therefore, the Veteran's request for a Travel Board hearing has been considered withdrawn.

In April 2009, January 2010, and September 2012, the Board remanded the Veteran's claim for further development.  Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review.


FINDING OF FACT

The Veteran's preexisting bilateral hearing loss disability was noted on examination at entrance into service, and there is clear and unmistakable evidence that it was not aggravated by service.


CONCLUSION OF LAW

Service connection for bilateral hearing loss is not warranted.  38 U.S.C.A. 
§§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With regard to the Veteran's claim for service connection for bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The Board finds that a VCAA letter dated in November 2004 fully satisfied the duty to notify provisions.  The letter explained what evidence was needed to substantiate the Veteran's claim, which evidence the Veteran was responsible for submitting, and which evidence VA would obtain.  A March 2006 notice letter explained how VA assigns disability ratings and effective dates.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board also concludes that VA's duty to assist has been satisfied.  The Veteran's VA treatment records are all in the claims file.  The Veteran has not identified any outstanding treatment records for VA to obtain.

VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of 
(1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See 38 C.F.R. § 3.159(c)(4) (2013);  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In April 2009, the Board remanded the Veteran's claim so that he could be provided with a VA examination.  A VA examination was scheduled for June 2009, but the Veteran failed to report.  In January 2010, the Board again remanded the Veteran's claim for a VA examination, having found that the notice of the June 2009 VA examination may have been sent to the wrong address.  A September 2010 VA examination was provided, which examiner opined that the Veteran had preexisting hearing loss, and that it is at least as likely as not that his hearing loss was aggravated by service.  The AMC ordered a new VA examination, however, because the September 2010 VA examiner did not address the Veteran's history of ear infections and surgical treatment therefor (e.g., otitis media, cholesteatoma, left ear numbness, mastoiditis, and a right mastiodectomy).  See Deferred Rating, May 2011.  An August 2011 VA examination report (from the same examiner) reflects she rescinded her prior opinion after re-testing and re-review of the claims file, and instead opined that the Veteran's hearing loss was not caused or aggravated by service.  In September 2012, the Board again remanded the claim for a VA medical opinion to clarify whether there was clear and unmistakable evidence that the Veteran's hearing loss was not aggravated by service.  An October 2012 VA medical opinion (from the same examiner) reflects she opined that the Veteran's bilateral hearing loss was clearly and unmistakably not aggravated by service.  In light of the above, the Board finds that there was substantial compliance with the Board's remand directives, and that the VA examination reports, particularly the August 2011 VA examination report and October 2012 addendum opinion, are adequate upon which to base a decision with regard to the Veteran's claim.  See Stegall v. West, 11 Vet. App. 268 (1998).  The VA examiner thoroughly reviewed the claims file, interviewed the Veteran, examined him, and provided a thorough rationale for her conclusions, having taken into account the Veteran's history of ear troubles as noted by the AMC in the May 2011 deferred rating decision.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2013).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2013).

To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  See 38 C.F.R. § 3.385 (2013).  "[I]mpaired 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."

Service connection may also be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013).  "With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes."  38 C.F.R. § 3.303(b) (2013).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).

"When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service."  Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003).  The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003).

When a preexisting disease or injury is noted on the entrance examination report, 38 U.S.C.A. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease."  38 C.F.R. § 3.306(a) (2013).  With regard to veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where a pre-service condition underwent an increase in severity during service.  38 C.F.R. § 3.306(b) (2013); Cotant v. Principi, 17 Vet. App. 116, 124, 130 (2003). Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute sufficient evidence for a non-combat veteran to show increased disability for section 1153 purposes 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).

The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran served on active duty in the Air Force from January 1974 to April 1975.  He claims that he has bilateral hearing loss that was caused by working pavements and ground and operating heavy equipment such as jack hammers, front end loaders, back hoes, and street sweepers while he was stationed at Warren AFB in Cheyenne, Wyoming.  See Notice of Disagreement, August 2004.

With regard to the Veteran's service treatment records, a December 1973 enlistment examination report reflects pure tone thresholds were as follows:




Hertz (decibels)

500
1000
2000
4000
RIGHT
20
25
25
45
LEFT
20
20
40
50

The Board adds that on his December 1973 report of medical history, the Veteran checked the box indicating that he had hearing loss.

Because the December 1973 enlistment examination report reflects that the Veteran's pure tone thresholds were 40 decibels or greater at 4000 hertz in the right ear, and at 2000 and 4000 hertz in the left ear, he met the VA criteria for a bilateral hearing loss disability for VA purposes on entry into service.  See 38 C.F.R. § 3.385 (2013).  Therefore, by definition for VA purposes, bilateral hearing loss was noted on entry, and the presumption of soundness does not apply in this case.  See 38 U.S.C.A. §§ 1111, 1153.  

A March 1974 reference audiogram record reflects that the Veteran had a pre-service history of significant noise exposure from construction.  Pure tone thresholds were as follows:




Hertz (decibels)

500
1000
2000
3000
4000
6000
RIGHT
30
35
35
50
50
80
LEFT
35
40
40
50
60
80

The record noted that the Veteran had been issued ear plugs and instructed in how to prevent effects from hazardous noise.  Another record of that date reflects that bilateral hearing loss was discovered on a routine audio examination, and a prior history of perforated tympanic membranes secondary to otitis media was noted.

An April 1974 in-service ENT clinic record reflects that the Veteran was noted as having a lifelong history of ear drainage, bilaterally, with decreased hearing.  A history of perforated tympanic membranes was also noted.  Examination revealed retracted, scarred tympanic membranes, and bilateral sensorineural hearing loss.  Impressions of chronic otitis media and moderate sensorineural hearing loss were recorded, and it was noted that these were considered to be disqualifying EPTS conditions.  The Veteran was not, however, medically discharged or the subject of any medical board proceeding.

An April 1974 profile serial report reflects that the Veteran was placed on a permanent profile due to bilateral hearing loss, noted as existing prior to service, and that he must not be assigned to duties involving exposure to hazardous noise.  

A March 1975 separation examination report reflects that the Veteran was given a profile for bilateral hearing loss since December 1973, which was non-progressive and had no complications and no sequelae.  Pure tone thresholds were as follows:




Hertz (decibels)

500
1000
2000
3000
4000
6000
RIGHT
25
30
25
45
45
65
LEFT
30
30
50
45
60
75

In light of all of the above evidence, including the Veteran's reports of noise exposure in service as well as the documented evidence of his physical profile due to noise exposure, the Board concedes that the Veteran was exposed to acoustic trauma in service.

Post-service, the Board notes that recent VA treatment records reflect that the Veteran has been followed for sensorineural hearing loss.  The Board also acknowledges recent VA treatment records showing that he has been treated for chronic otitis media with cholesteatoma, external otitis, tympanosclerosis, left ear numbness, and mastoiditis, and that a right ear mastiodectomy was performed in October 2010, albeit the Board notes that these conditions are not before the Board.  See August 10, 2012 (Virtual VA), October 2010, July 2010, May 2010, February 2010.  None of the Veteran's treatment records, however, indicate that the Veteran's preexisting bilateral hearing loss was aggravated by his active service.  In fact, a May 2010 VA ENT record reflects that the physician opined that the Veteran's hearing loss could be related to tympanosclerosis or to an ossicular problem.

The Veteran was provided with VA examinations in September 2010 and August 2011, and an October 2012 addendum medical opinion was obtained (all from the same examiner).

The September 2010 VA audiological examination report reflects that the examiner noted that the Veteran's induction examination showed hearing loss, that a March 1974 audiological examination showed a temporary threshold shift in both ears, and that the March 1975 separation examination indicated a decrease in thresholds in both ears of five to 10 decibels which the examiner opined was not clinically significant.  The Veteran reported that he could not recall when he first noticed hearing loss.  The examiner noted the Veteran's history of pre-service noise exposure from construction.  Pure tone thresholds were as follows:




Hertz (decibels)

500
1000
2000
3000
4000
Avg.
RIGHT
75
95
105+
105+
105+
103
LEFT
45
65
70
85
85
76

Speech recognition scores using Maryland CNC word lists were 40 percent for the right ear and 72 percent for the left ear.  The examiner recorded a diagnosis of severe to profound bilateral sensorineural hearing loss.  The examiner opined that the Veteran's hearing loss preexisted service, and that it is at least as likely as not that the Veteran's hearing loss was aggravated by service, citing the threshold shifts in service and significant in-service noise exposure.

An August 2011 VA audiological examination was provided by the same VA examiner.  The Veteran reported to the examiner that he first noticed hearing loss when he was in high school.  The examiner noted the Veteran's reported in-service noise exposure from heavy equipment, and his post-service history of ear infections and surgical treatment.  Pure tone thresholds were as follows:




Hertz (decibels)

500
1000
2000
3000
4000
Avg.
RIGHT
85
95
80
90
100
91
LEFT
55
65
75
75
80
74

Speech recognition scores using Maryland CNC word lists were 64 percent for the right ear and 80 percent for the left ear.  The examiner recorded a diagnosis of moderate-to-profound mixed hearing loss in the right ear and mild-to-profound sensorineural hearing loss of the left ear.  The examiner opined that based on the audiological testing results gained from that examination, as well as the history obtained and a re-review of the claims file, she rescinded her prior opinion and instead opined that the Veteran's hearing loss was not caused or aggravated by his in-service noise exposure.  The examiner explained that the Veteran entered service with moderate high frequency hearing loss bilaterally, that it was obvious that the Veteran's hearing loss preexisted service and was significant, but that no significant changes were shown between the time of enlistment to separation.  The examiner further opined that the Veteran's hearing loss disability had no relationship to the ear infection he was treated for in service.

An October 2012 addendum medical opinion from the same VA examiner was obtained to clarify whether the Veteran's hearing loss was clearly and unmistakably not aggravated by service.  The same examiner clarified that the Veteran's bilateral hearing loss was clearly and unmistakably not aggravated by service.  The examiner added that the differences in thresholds between the Veteran's enlistment and separation were only up to 10 decibels, whereas in order for a threshold shift to be significant, it must be 15 decibels or greater.  The examiner further acknowledged the Veteran's history of middle ear infections, and opined that fluctuations shown in his thresholds were to be expected from a middle ear infection, but that they were nothing sustainable (i.e., not permanent).

The Board finds the August 2011 and October 2012 opinions of the VA examiner to be the most probative evidence of record with regard to whether the Veteran's bilateral hearing loss was clearly and unmistakably not aggravated by service.  The Board notes that there are no medical opinions of record as to the etiology of the Veteran's hearing loss other than those provided by the VA examiner, as well as a May 2010 VA treatment record containing a merely speculative notation that the Veteran's hearing loss could be related to tympanosclerosis.  The Board acknowledges that the VA examiner's opinions in her August 2011 VA examination report, as clarified by her October 2012 medical opinion, represent a change from her prior opinion reflected in her September 2010 VA examination report that the Veteran's hearing loss was at least as likely as not aggravated by his service.  The Board notes, however, that she explained in her August 2011 VA examination report that the change in her opinion was based, among other things, on the results of the audiological testing at that examination as well as on the history by the Veteran at that examination.  In that regard, the Board emphasizes that the Veteran's pure tone thresholds showed a decrease (i.e., an improvement) from the time of the prior September 2010 VA examination, and the examiner explained that the fluctuations shown were attributable to his middle ear infections (as his VA treatment records show that around the time of the September 2010 VA examination, the Veteran had been diagnosed with chronic otitis media with cholesteatoma, external otitis, tympanosclerosis, and mastoiditis, and that a right ear mastiodectomy was performed, see February 2010, May 2010, July 2010, and October 2010).  Thus, the Board emphasizes that this is not a case in which there are conflicting etiological opinions that could place the evidence in relative equipoise, but rather, the VA examiner in this case changed her opinion based on more recent evidence including the Veteran's history and audiological testing.

The Board acknowledges that the Veteran contends that his hearing was aggravated by his active service, and that he is competent to report experiencing difficulty hearing.  The Veteran as a lay person is not, however, competent to ascertain that a perceived decrease in hearing represents aggravation, as opposed to an intermittent flare-up.  Such an opinion requires audiological or medical training, credentials, or expertise.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore, the Board finds the competent medical opinion of the VA examiner to be by far more probative.

Therefore, in summary, the Board finds that the preponderance of the evidence shows that the Veteran's bilateral hearing loss was noted on entry and preexisted service, and that it is clearly and unmistakably shown to have not been aggravated by service; the benefit-of-the-doubt rule is not for application.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



______________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs