Citation Nr: 1334530 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-29 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam Era from February 1968 to February 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the St. Paul, Minnesota Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran indicated in his August 2009 VA Form 9 that he wished to testify at a Board hearing. VA contacted the Veteran by phone in September 2009 and the Veteran asked to waive his request for a Board hearing. Therefore, the Veteran's request for a Board hearing is considered withdrawn. See 38 C.F.R. § 20.704(d) (2013). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals additional medical records, including an April 2004 VA medical record that is pertinent to this appeal. All other documents are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein have been accomplished. 2. The Veteran's bilateral hearing loss did not begin in service, is not causally related to, or permanently made worse by, his military service and sensorineural hearing loss was not compensably disabling within one year following separation from active duty. CONCLUSION OF LAW The Veteran's bilateral hearing loss was not incurred in, aggravated by, or related to, his military service, and sensorineural hearing loss is not presumed to be related to military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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 December 2008 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 July 2009. 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. Legal Principles Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). Sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection if such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis In an August 1967 entrance examination, the Veteran reported that he had no prior trouble with his ears or prior hearing loss and that his usual occupation was welder. The examiner noted normal ears but also noted hearing loss on the summary of defects. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 Right 0 (15) 0 (10) 0 (10) - 15 (20) Left 20 (35) 30 (40) 35 (45) - 40 (45) (Note: Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards and, where applicable, are in parentheses.) In a December 1969 separation examination, the Veteran reported that he had experienced hearing loss. The examiner noted normal ears and that the Veteran had hearing loss in his left ear prior to service. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 Right 0 0 5 - 5 Left 0 -5 0 - 5 An April 2004 VA medical record noted that the Veteran's ears had no tinnitus or hearing loss and that whispered voice acuity and finger rub acuity were intact. In an October 2008 private audiological examination, the Veteran reported that for a year in Vietnam he was exposed to weapons fire, including large cannons, without hearing protection. He claimed that he had experienced hearing loss since leaving the military. The examiner concluded that the Veteran's right ear exhibited hearing levels within normal limits from 250 Hz to 3000 Hz sloping to moderate mixed loss at 8000 Hz. The left ear had mild loss at 250 Hz sloping to moderate loss at 2000 Hz and moderately severe mixed loss at 8000. Objective testing revealed the following: Puretone Threshold 250 500 1000 2000 3000 4000 6000 8000 Right 20 20 20 15 25 35 40 50 Left 25 30 35 35 - - 55 55 In a March 2009 VA audiological examination, the examiner noted that the August 1967 entrance examination indicated normal hearing in the right ear and a mild hearing loss in the left ear. She also noted that the December 1969 separation examination indicated normal hearing in both ears and that there was no other in-service documentation showing hearing problems. The Veteran's chief complaint was "poor hearing and occasional pain in ears lasting approximately three seconds that is worse during the winter. The Veteran reported that he first noticed this about six months ago." He also reported a history of a "feeling of fullness" in his ears. She noted that the Veteran stated that while in service he was around M-16s and mortar fire and that post-service he reported occupational noise exposure working as a farmer and in a grain elevator where he did not use hearing protection. Objective testing revealed the following: Puretone Threshold 500 1000 2000 3000 4000 Right 30 30 30 30 30 Left 45 45 50 60 65 Puretone Threshold Average Right 30 Left 55 Maryland CNC Speech Discrimination Right 88 Left 92 The examiner diagnosed the Veteran with mild sensorineural hearing loss in the right ear and moderate to severe conductive high frequency hearing loss in the left ear. She opined that it was "less than likely" that hearing loss was due to military noise exposure because hearing was normal in both ears at separation. She also noted that the left ear hearing loss was conductive in nature "which is not consistent with noise induced hearing loss." In a May 2009 notice of disagreement, the Veteran's representative claimed that he had been exposed to constant noise exposure from howitzers, helicopters and various weapons, everyday for over a year. The Veteran stated that many times after getting off helicopters, he could not hear "for a while," and that in his last five months of service he was with a tank unit where he was exposed to noise while he repaired radios on the tanks. The representative argued that the results of the Veteran's separation examination were inaccurate because the Veteran "didn't care how he did on the hearing test, he just wanted to get out of there." In November 2010, the Veteran's representative then submitted a letter from Town and Country Hearing dated October 2010 that referenced a journal article examining hair cell loss in the inner ear. "D.O.", the letter's author and a representative of Town and Country Hearing, claimed that the article "supports the diagnosis that cochlear hair cells that are damaged from loud noise exposure continue to deteriorate with time ... [which]... supports the hypothesis that patients will need more treatment from hearing issues suffered decades before." The journal article was highlighted, presumably by D.O. or the Veteran, to draw attention to points that might support the Veteran's argument. These excerpts generally explained the mechanisms by which hair cells in the inner ear can be damaged, either immediately or later due to replacement of the hair cell by another cell. Although the Veteran has a current diagnosis of bilateral hearing loss, the preponderance of the evidence weighs against a finding that the Veteran's current hearing loss disability was incurred in, or is related to, his activities during service. The Veteran's left ear was also not aggravated by service. For these reasons, the claim is denied. The Board will address the elements of service connection in turn. First, the Veteran currently has bilateral hearing loss. 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 of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, or 4000 Hz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the March 2009 VA audiological examination, objective testing showed that for the Veteran's left ear, the auditory threshold was 45 dB at 500 Hz, 45 dB at 1000 Hz, 50 dB at 2000 Hz, 60 dB at 3000 Hz and 65 dB at 4000 Hz. In the right ear, the Veteran's auditory threshold was 30 dB at 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz. The Veteran's Maryland CNC speech discrimination scores were 92 percent in the left ear and 88 percent in the right ear. Thus, since the Veteran's left ear had auditory thresholds greater than 26 dB at five frequencies and a Maryland CNC score below 94 percent; and the right ear had auditory thresholds at all five frequencies that exceeded both 26 dB and 40 dB, and a Maryland CNC score below 94 percent, the Veteran has current bilateral hearing impairment. 38 C.F.R. § 3.385. Second, although the Veteran is entitled to the combat presumption, the Board finds that his hearing loss was not incurred in, or related to, service. The Veteran's DD-214 confirms receipt of a Combat Infantryman Badge and therefore he is a combat Veteran. As such, he is entitled to application of the provisions of 38 U.S.C.A. § 1154(b). That statute provides that, in the case of a veteran who engaged in combat with the enemy during a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d). In Collette, the United States Court of Appeals for the Federal Circuit (Federal Circuit) articulated a three-step sequential analysis to be performed when a combat veteran seeks benefits under the method of proof provided by 38 U.S.C.A. § 1154(b). Id. at 392-93. Initially, VA must determine whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." If a veteran produces credible evidence that would allow a reasonable fact-finder to conclude that the alleged injury or disease was incurred in service, then the veteran has produced "satisfactory evidence" to satisfy the first step under the statute. This determination requires the credibility of the veteran's evidence to be judged standing alone and not weighed against contrary evidence. In Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), the United States Court of Appeals for Veterans Claims found that, in determining whether documents submitted by a veteran constitute "satisfactory" evidence under 38 U.S.C.A. § 1154(b), VA may properly consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." VA must then determine if the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service," again without weighing the veteran's evidence with contrary evidence. Collette, 82 F.3d at 392-93. If these two inquiries are met, VA "shall accept" the veteran's evidence as sufficient proof of service connection, even if no official record of such incurrence exists. At this point, a factual presumption arises that the alleged injury or disease is service-connected. Id. In the October 2008 private examination, the March 2009 VA examination and the May 2009 notice of disagreement, the Veteran alleged that while in service he was regularly exposed to weapons fire, including large cannons and howitzers, mortars and M-16s-to include when he was in combat-and that he was regularly exposed to helicopters and tanks. He noted that during this time he did not wear ear protection. Such noise exposure could reasonably be considered to be the cause of the Veteran's hearing loss and the Veteran's receipt of a Combat Infantryman Badge supports his statements. Furthermore, this noise exposure is consistent with service in Vietnam and is not contradicted by other statements or evidence in the record. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Thus, having applied the first two steps under Collette, a factual presumption arises that the alleged injury is service-connected. Under the third step in Collette, VA is to weigh evidence contrary to that which established the presumption of service connection. If VA meets its burden of presenting clear and convincing evidence to the contrary, the presumption of service connection is then rebutted. Collette, 82 F.3d at 393. In the December 1969 separation examination, the Veteran reported that he had previously experienced hearing loss and the examiner noted that the Veteran had hearing loss in his left ear prior to service. Objective testing showed hearing within normal limits. The Veteran's right ear threshold was 0 dB at 500 Hz and 1000 Hz and 5 dB at 2000 Hz and 4000 Hz. The left ear threshold was 0 dB at 500 Hz, -5 dB at 1000 Hz, 0 dB at 2000 Hz and 5 dB at 4000 Hz. When compared to the entrance examination, the separation examination showed improved (and normal) hearing at all frequencies tested. The Veteran, however, disputes the validity of the separation examination results and asserts that he incurred hearing loss in service. In the May 2009 notice of disagreement, the Veteran's representative claimed that at the separation examination, the Veteran "didn't care how he did on the hearing test, he just wanted to get out of there." In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Other evidence of record, however, supports the separation examination results. The service treatment records do not contain any evidence of hearing loss, aside from the entrance examination. Post-service, the first evidence of a complaint of hearing loss appears in the October 2008 private examination, about 38 years after the Veteran left service in February 1970. In the March 2009 VA examination, the examiner reported that the Veteran first noticed poor hearing and pain in his ears about six months before, which corresponds with the October 2008 private examination. The April 2004 VA medical record also noted that the Veteran's ears had no hearing loss and that whispered voice acuity and finger rub acuity were "intact." Moreover, he reported no history of hearing loss at that time. On balance, it appears that the separation examination results are consistent with the other post-service evidence of record. Thus, the Board affords the separation examination more probative value than the Veteran's statement. Therefore, the Board finds that the preponderance of the evidence weighs in favor of finding that the Veteran's hearing loss onset more than one year after service. Further, in the March 2009 VA audiological examination, the examiner noted that the August 1967 entrance examination indicated normal hearing in the right ear and a mild hearing loss in the left ear. She also noted that the December 1969 separation examination indicated normal hearing in both ears and that there was no other in-service documentation showing hearing problems. The Veteran's chief complaint was poor hearing and occasional pain in ears lasting approximately three seconds that was worse during the winter, which the Veteran first noticed about six months prior. He also reported a history of a "feeling of fullness" in his ears. She noted that the Veteran stated that while in service he was around M-16s and mortar fire and that post-service he reported occupational noise exposure working as a farmer and in a grain elevator where he did not use hearing protection. The examiner diagnosed the Veteran with mild sensorineural hearing loss in the right ear and moderate to severe conductive high frequency hearing loss in the left ear. She opined that it was "less than likely" that hearing loss was due to military noise exposure because hearing was normal in both ears at separation. She noted that the left ear hearing loss was conductive in nature "which is not consistent with noise induced hearing loss." The Board notes that the examiner's opinion-that the Veteran's hearing loss was "less than likely" related to service-was expressed in language that does not account for whether the evidence is equally balanced both for and against the Veteran's claim. However, the Board finds that other evidence in the examination report supports the inference that it is less likely than not that the Veteran's bilateral hearing loss is related to his military service. The examiner thoroughly considered the objective and subjective history of the Veteran's hearing, noting that the separation examination showed normal hearing, that there were no complaints of hearing problems during service and that the Veteran only noticed his hearing loss within the last six months of March 2009. She then examined the Veteran and conducted puretone threshold and Maryland CNC testing. After determining that the Veteran had a current hearing impairment, she based her negative nexus opinion primarily on the fact that the separation examination showed normal hearing and the conductive hearing loss in the left ear was inconsistent with noise-induced hearing loss. The Board concludes that given the significant contrary evidence, it is less likely than not that the Veteran's bilateral hearing loss was related to his service. In light of the above, and the fact that the contained in the examination report is consistent with the other evidence of record, the Board finds that the Veteran was provided with an adequate examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Other evidence of record supports the conclusion that the Veteran's hearing loss is unrelated to his service. The nearly 38 year gap between service and a documented complaint of hearing loss is notable and corroborated by the April 2004 VA medical record showing normal hearing. See Maxson v. West, 12 Vet. App. 453, 459 (1999). The Veteran disputes the examiner's opinion through the journal article and D.O.'s letter. The Veteran's argument, however, is not clearly articulated. Based on the highlighted portions of the article, the Board understands the Veteran to be asserting that his hearing was damaged in service but the symptoms did not onset until many years later. In other words, his in-service noise exposure caused his hearing loss, even if it did not show up on the separation examination. The Veteran has not established that D.O. has any medical or audiological training or expertise. There are no credentials associated with his name and the letter only indicates that he is associated with Town and Country Hearing. Furthermore, even if D.O. had sufficient expertise to interpret and apply the findings of the journal article to the Veteran's case, there is nothing in the letter indicating that D.O. examined the Veteran and found that it applies to him. The Board therefore takes this evidence to simply support the general proposition that in some instances, noise-induced hearing loss can worsen over time. This interpretation is consistent with D.O.'s letter that the article "supports the diagnosis that cochlear hair cells that are damaged from loud noise exposure continue to deteriorate with time ... [which]... supports the hypothesis that patients will need more treatment from hearing issues suffered decades before." Although the article describes a mechanism of developing hearing loss, it does not establish that the Veteran's hearing was actually damaged. Thus, the Board affords this evidence low probative value. In light of the foregoing, the Board finds that the weight of the evidence supports a finding that the Veteran's hearing loss is not related to his service. Consequently, the Board finds that the presumption of entitlement to service connection is rebutted by clear and convincing evidence. Collette, 82 F.3d at 393. The Veteran is also not entitled to service connection for hearing loss on a presumptive basis. Service connection for sensorineural hearing loss will rebuttably be presumed if it is manifest to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, a nexus to service will be presumed where there is continuity of symptomatology since service. Walker, 708 F.3d at 1338-40. Because the Board finds that the Veteran's hearing loss did not begin in service and manifested more than one year after leaving service, the Veteran is not entitled to service connection for hearing loss on a presumptive basis, including on the basis of continuity of symptomatology. Finally, the Veteran's left ear was not aggravated by military service. In the August 1967 entrance examination, the examiner noted hearing loss on the summary of defects and objective testing revealed that the Veteran's puretone thresholds for the left ear exceeded the requirements for impaired hearing under 38 C.F.R. § 3.385. Therefore, with regard to the Veteran's left ear, the presumption of soundness does not apply. 38 C.F.R. § 3.304(b). A preexisting disability is presumed aggravated by military service where there is an increase in the disorder during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Here, as analyzed above, there is no competent and probative evidence showing worsening in the Veteran's left ear during service. Therefore, the Board finds that the Veteran's left ear disability was not aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Therefore the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. 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