Citation Nr: 1333616 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-31 827 ) 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: Jeany Mark, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active duty service from July 1968 to July 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. The Veteran was afforded a hearing before the undersigned Veterans' Law Judge in February 2008. A transcript of that hearing is associated with the claims file. In June 2008, this claim was remanded for further development. In July 2009, the Board denied the claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (the Court). In an April 2011 Memorandum Decision, the Court Vacated the Board's July 2009 decision and remanded it back to the Board for consideration of the claim based on a theory of continuity of symptomatology. In a March 2012 decision, service connection for a bilateral hearing loss was again denied by the Board. The Veteran appealed the Board's decision to the Court. In a Joint Motion for Remand (JMR) the parties agreed to vacate the Board's March 2012 decision denying service connection for bilateral hearing loss and remand the case to the Board for additional development. The JMR was incorporated by reference in a Court order dated in March 2013. FINDING OF FACT A bilateral hearing loss was not manifest during active service, and a sensorineural hearing loss was not manifest to a compensable degree within one year of separation from active duty and is not otherwise attributable to active service. CONCLUSION OF LAW A bilateral hearing loss was not incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in August 2004 and March 2006, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Analysis The Veteran appeals the denial of service connection for bilateral hearing loss. He contends that he has hearing loss from artillery blasts during service. According to the Veteran, he used howitzers daily. He further stated that his left ear was closer to the weapon when it fired and that he never wore hearing protection. When seen by a private examiner in September 2004, the Veteran reported that his hearing loss is the result of service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). Certain chronic diseases, such as a sensorineural hearing loss, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, or 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. Based on the evidence of record, the Board finds that the evidence preponderates against entitlement to service connection for a bilateral hearing loss disability. Service treatment records reveal no complaints, findings, or diagnoses of a hearing loss disability. Clinical evaluation of the Veteran's ears in July 1968 was determined to be normal. To the extent that the Veteran may have had some hearing loss when comparing his induction and separation examinations, the VA examiner found that in-service testing did not evidence a high frequency shift which is normally indicative of changes in hearing due to noise exposure. Clinical evaluation of the Veteran's ears was determined to be normal at the time of the January 1970 separation examination. At that time, the Veteran denied ear trouble and hearing loss. Also, sensorineural hearing loss was not clinically shown to be compensably disabling within a year of separation from active duty. The record reveals that in the 1990's appellant filed two claims for non-service connected pension benefits. No reference or complaints to hearing loss was made on either application. Examination in January 1995 reported the ears to be normal. The evidence shows hearing problems were first clinically documented around 2004 which is over three decades following the appellant's discharge from service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). A May 2007 VA audiological consultation indicated that the Veteran reported a history of hearing loss for "many years" as well as intermittent tinnitus for about the last 20 years. The audiologist wrote that the Veteran did have exposure to artillery noise during artillery practice, but did not have any active combat experience. The audiologist also noted that the Veteran had noise exposure as a civilian, working for many years as a carpenter and in construction without hearing protection. Testing was interpreted by the audiologist as revealing many inconsistencies, suggesting that the volunteered responses were not indicative of true organic hearing acuity. Objective testing was referenced as having responses well within the normal limits through 6000 Hertz . The Board also notes that the Veteran stated he underwent a hearing test at the Durham VA medical center in August 2007. A response to the Board's request for records, however, indicated that there were no audiological notes from August 2007. A clinical record dated in August 2008 indicates the Veteran was discharged from the audiology clinic in May 2008 due to inconsistencies and exaggerations of hearing loss. During the current evaluation, the examiner found no communication difficulty was present when talking with the Veteran prior to the beginning of the examination. The Veteran answered several questions asked of him without visual cues as the clinician had his back to the Veteran. Testing obtained was interpreted as unreliable and completely inconsistent. Objective testing was interpreted as being consistent with normal or near normal/mild high frequency hearing loss. An otolaryngology consultation was conducted the next day. The Veteran informed the clinician that he had severe left greater than right hearing loss ever since serving in the infantry. Testing was interpreted as being highly inconsistent and suspicious for malingering. Physical examination was conducted. The diagnosis was subjective hearing loss with inconsistencies in audiology consistent with malingering. The Veteran was afforded a VA examination in November 2008. The audiologist stated that, while the Veteran was not overtly uncooperative, he continued to pattern responses consistent with functional overlay. Objective testing indicated essentially normal hearing in the right ear and borderline normal to mild high frequency hearing loss in the left ear. The examiner opined that the hearing loss was less likely than not caused by noise exposure from active duty. Review of testing at induction and discharge revealed hearing within normal limits at both examinations. Comparison of thresholds at induction and those obtained at discharge reveal no significant changes and, in particular, no high frequency shift such as is normally indicative of changes in hearing due to noise exposure. The Veteran was exposed to significant noise post-service including working in construction and working with textiles. The self reported history the Veteran provided in June 1970 indicated no ear or hearing problems. The examiner found it less likely that any current hearing loss is attributable to military service as the Veteran's hearing was within normal limits at discharge and did not show evidence of high frequency changes that would signal noise damage. The Board notes that the Veteran is competent to report a loss of hearing. To the extent, however, that there is an assertion of in service onset and continuity, such remote lay evidence is contradicted by the more probative evidence and is not credible. Simply put, the Veteran has been shown to be an unreliable historian. To that end, testing has been interpreted as being highly inconsistent and suspicious for malingering. Furthermore, he has rendered inconsistent statements regarding the onset of his disability. In September 2004, he reported an onset of hearing problems 10 to 15 years ago which is around 1989, 19 years post service. During his February 2008 hearing, however, he reported he first noticed hearing loss around 1973 while in the National Guard. In July 2008, he reported decreased ability to hear since service. His inconsistent statements go against his credibility and make him an unreliable historian. The Board also notes that if the Veteran truly was having hearing problems since service, it is more believable to conclude that he would have sought treatment for the disorder prior to 2004. The Veteran filed a VA claim in October 1990 for other conditions but did not claim service connection for hearing loss nor did he make any mention of any symptomatology. The Board finds it not credible that he would file a claim for other disabilities and not for an ongoing hearing loss if he were experiencing continuity. Moreover, as noted, when examined in 1995 the ears were noted to be normal and no pertinent complaints or findings were registered on that examination. The Board is mindful of the January 2012 statement from a private Registered Nurse. She indicates that she had reviewed the Veteran's claims file. She noted the Veteran's audiology examinations for enlistment and separation from the military were both normal. The Veteran was subjected to loud noise during active duty while firing a howitzer and he reported his right ear was closest to the gun and they did not wear hearing protection. She wrote that sounds greater than 85 decibels can cause hearing loss. She observed that post-service medical records include the Veteran's references to hearing loss since active duty and the fact that left ear hearing loss was greater than right ear hearing loss which is consistent with the Veteran's statement regarding firing the howitzer. The examiner noted that the Veteran's most recent statements report hearing loss occurred while the Veteran was on active duty. The Veteran did not have a history of auditory problems prior to active duty and he had a current diagnosis of sensorineural hearing loss. It was her professional opinion that it was impossible to determine with certainty whether the Veteran's hearing loss was caused by loud noise exposure during military service or his civilian work noise exposure as a carpenter. The unprotected exposure, however, to loud noise during the Veteran's military service placed him at increased risk for hearing loss. She opined that it at least as likely as not that the Veteran's hearing loss was secondary to acoustic trauma from firing the howitzer. The Board has been presented with positive and negative opinions regarding the etiology of the Veteran's hearing loss disability. The Board, however, finds that the VA medical opinion is persuasive and assigns it great probative weight. The January 2012 opinion links current hearing loss to active duty based the Veteran's exposure to acoustic trauma during active duty which placed him at increased risk for hearing loss. Significantly, the opinion does not address the fact that the Veteran denied having or ever having had hearing loss at the time of his discharge. The author merely notes that there was no hearing loss present at the time of the in-service audiological evaluations. Furthermore, the opinion is not supported by any reference to pertinent medical evidence. The author noted that exposure to loud noises causes tiny hair cells in the cochlea to vibrate which intensified with loudness. When the hair cells vibrate, damage to the hair cells occurs but the cells are able to recuperate if the vibrations are constant. Constant exposure to loud noises can damage the hair cells permanently as they are not given enough time to recuperate. Once damaged, the hair cells cannot grow back, however, compensation can occur. The Board finds the pathology of hearing loss set out by the author of the January 2012 opinion seems to cut against her findings. It is not apparent to the Board how testing conducted at discharge would not reveal the presence of any damage to hearing, if the damage to the cochlea was permanent at that time. The pathology discussed in this opinion does not indicate that additional hearing loss occurs after removal of the acoustic trauma. Therefore, when the pathology discussion is applied to the fact pattern during active duty, the results are that the acoustic trauma the Veteran was exposed to during active duty did not result in permanent hair cell damage as the Veteran affirmatively denied ever having any problems with his hearing at the time he completed the Report of Medical History in connection with his discharge examination and clinical evaluations failed to document hearing loss. This negates the possibility that the hair cells were permanently damaged but the Veteran was able to compensate for this. The Board finds that if the Veteran did experience permanent hearing loss during active duty for which compensation did occur, the Veteran would have reported this hearing loss symptomatology at the time of his discharge when completing his Report of Medical History. To the extent that the opinion relies on the Veteran's post-service reports of medical history, the Board has found that his credibility has been impeached. These post-service allegations are completely undercut by the Veteran's in-service reports of symptomatology (or the lack thereof) regarding hearing loss as well as the documented lack of a hearing loss disability on the audiological evaluations. The Board places greater probative weight over the in-service findings of a lack of a hearing loss disability. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board finds greater probative weight should be accorded the report of the November 2008 VA examination. The opinion that current hearing loss was not linked to active duty was based on the fact that in-service testing did not evidence a high frequency shift which is normally indicative of changes in hearing due to noise exposure. The opinion of the VA examiner was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The examiner addressed the Veteran's contentions and based his opinion on a review of the claim folders to include the appellant's in service and post service noise exposure, as well as a complete physical examination. The opinion is well reasoned and supported by the historical record. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges the January 2012 statement from the Veteran's girlfriend, S.B. She expressed that she had been with the Veteran for over 40 years and that she had to repeat herself to the Veteran often. She claimed that he cannot hear but reads her lips often. According to S.B., the Veteran has been this way for a long time. S.B. is competent to provide such lay testimony. The Board, however, has weighed the Veteran's statements and S.B. statements and finds the current recollections and statements made in connection with a claim for VA compensation benefits to be of less probative value than the normal findings during service, his denial of pertinent symptomatology during service, the gap in time between service and his initial report of symptoms, and the opinion of the VA examiner. In sum, the most probative evidence of record is devoid of a showing that the Veteran's hearing loss is related to service. As there is not an approximate balance of positive and negative evidence regarding the merits of the claims that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs