Citation Nr: 1335107 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-21 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from July 2001 to July 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran now resides in Illinois, so the matter is now handled by the RO in Chicago, Illinois. In April 2011, the Board denied entitlement to service connection for right ear hearing loss and remanded the claim for entitlement to service connection for left ear hearing loss for a new VA examination and to obtain a medical opinion. The Veteran was afforded a VA examination in May 2011, and a medical opinion was obtained. The Board is satisfied that there has been substantial compliance with prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the Appellant the right to substantial, but not strict, compliance with that order.). That development having been completed, the claim is now ready for appellate review. FINDINGS OF FACT 1. The Veteran entered service with left ear hearing impairment, which was not aggravated by service. 2. The Veteran does not have a left ear hearing loss disability as defined by VA regulations. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a pre-adjudication letter sent to the Veteran in September 2005. That letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). An additional letter was sent in April 2007 advising the Veteran how disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently adjudicated in an August 2011 Supplemental Statement of the Case (SSOC). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Virtual VA records have been reviewed. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that in the April 2011 Remand, the Board found the January 2010 VA examination did not have an adequate opinion and the claim was remanded to obtain a more thorough medical opinion. In compliance therewith, another VA medical opinion was rendered following review of the claims file and an examination in May 2011. No deficiency is detected in the May 2011 VA examination. All questions necessary to render the determination made herein thus have been answered. As discussed below in greater detail, the VA medical examination and opinions collectively are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as providing sufficient detail so that the Board can perform a fully informed evaluation). Thus, the Board finds that VA has satisfied the duty to assist the Veteran and the Board may proceed to consider the merits of the claim. II. Entitlement to Service Connection for Left Ear Hearing Loss The Veteran seeks entitlement to service connection for left ear hearing loss. The Board notes that the Veteran's original claim was for entitlement to service connection for bilateral hearing loss; however, the Board denied entitlement to service connection for right ear hearing loss in a April 2011 decision, and as such, that issue is no longer on appeal. Generally, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for hearing loss may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, no legal presumption is applicable because, as will be explained below, the Veteran had some amount of hearing loss on entrance into the military, which was not aggravated by service, and he does not currently have a hearing loss disability as defined by the regulations. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the 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 (emphasis added). The Veteran claims he suffered hearing loss due to in-service acoustic trauma while driving an amphibious assault vehicle, which he reported was noisier than aircraft. See December 2005 VA examination. Additionally, the Veteran reported military noise exposure from small arms, machine guns, mortars and bombings. The Veteran's service treatment records are significant for findings of hearing loss. Specifically, the Veteran's August 2000 enlistment examination shows that he had the following pure tone thresholds, in decibels, of the left ear: HERTZ 500 1000 2000 3000 4000 LEFT 30 10 0 0 0 The Board notes that the 30 decibel auditory threshold on the left at the 500 Hz level constitutes impaired hearing. See Hensley, 5 Vet. App. at 157. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities, or disorders noted at the time of the 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; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability of which the Veteran later complains. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). Here, the Veteran's enlistment examination indicates the Veteran entered service with some amount of hearing loss in his left ear. Thus, the presumption of soundness does not apply. Rather, the Veteran may bring a claim of aggravation of the disorder. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). The Veteran has the burden of establishing aggravation, by showing that there was an increase in the disability during service. Horn v. Shinseki, 25 Vet. App. 231, 235 n. 6 (2012). Again, the Veteran claims his hearing loss is due to in-service acoustic trauma. The Board notes that the Veteran's DD-214 indicates he was an assault amphibious vehicle crewman. Therefore, his account of in-service noise exposure appears credible and consistent with the circumstances of his service. Thus, the Board concedes the Veteran's exposure to acoustic trauma during service. See 38 U.S.C.A. § 1154(a). The pertinent inquiry is whether the in-service acoustic trauma aggravated his pre-existing left ear hearing loss impairment. The Board concludes it did not. Aside from the entrance examination findings, during service, an August 2001 Hearing Conservation Data Form shows the following pure tone thresholds, in decibels, for the Veteran's left ear: HERTZ 500 1000 2000 3000 4000 LEFT 25 10 5 0 10 A subsequent in-service February 2005 Hearing Conservation Data Form shows the following pure tone thresholds, in decibels, for the Veteran's left ear: HERTZ 500 1000 2000 3000 4000 Feb. 23, 2005 55 60 50 50 55 Feb. 25, 2005 40 35 25 25 30 Feb. 28, 2005 35 30 15 20 20 His June 2005 separation examination also notes the Veteran's complaints of hearing loss. The Board finds noteworthy that his service treatment records also confirm a significant history for sinus and allergy problems. Indeed, he underwent a septoplasty for a deviated septum in June 2005 shortly before separation from service. September 2005 post-service treatment records, a mere two months after separation, indicate normal hearing bilaterally. See September 2005 treatment note. Indeed, none of the post-service treatment records and examination reports of record confirm a hearing loss disability as defined in 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in December 2005. On the authorized audiological evaluation in December 2005, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 20 15 15 20 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner stated the Veteran had hearing within normal limits. Based on these results, the Veteran did not have a left ear hearing loss disability as defined in 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in January 2010. On the authorized audiological evaluation in January 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 10 5 5 10 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner noted that the Veteran had normal sensitivity at all test frequencies. The examiner noted that the Veteran's audiogram in 2000 (before he went on active duty) showed a 30 decibel loss at 500 Hz in the left ear, which is essentially unchanged. Once again, these results do not confirm a post-service hearing loss disability as defined in 38 C.F.R. § 3.385. The Board previously remanded this claim in April 2011 finding the January 2010 VA examiner failed to discuss the audiological findings reported on the February 2005 audiograms, including whether there was a clinically significant shift in left ear hearing thresholds between the Veteran's enlistment into service and his discharge from service. The Board also found that the examiner failed to provide an opinion as to whether the Veteran's pre-existing left ear impaired hearing was chronically aggravated by service, including as due to exposure to loud noises and the duties of an amphibious assault vehicle crewman, or if any increase in disability was due to the natural progression of the disease. As such, the claim was remanded in April 2011 to obtain a medical opinion. The Veteran was afforded a VA examination in May 2011. On the authorized audiological evaluation in May 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 15 10 10 25 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. Once again, these results indicate the Veteran does not have left ear hearing loss disability as defined in 38 C.F.R. § 3.385. With regard to the ambiguities noted in the April 2011 Board remand, the Board finds the May 2011 examiner offered a persuasive explanatory opinion. Specifically, the 2011 examiner explained that the Veteran's records establish a history of recurring middle ear problems since childhood, and his physical when he entered the service documented minimal scarring on both eardrums. The examiner noted the Veteran's audiogram in 2000, prior to service, shows a threshold of 30 decibels at 500 Hz in the left ear, his VA examination in December 2005 showed a threshold of 20 decibels at 500 Hz in the left ear and his VA examination in January 2010 showed a threshold of 25 decibels at 500 Hz in the left ear. The examiner stated that even if a threshold of 25 decibels was classified as a hearing loss, there is no evidence of aggravation when compared to his pre-military test results in 2000. The examiner noted that the Veteran's post-deployment questionnaire in 2004 indicated no need for referral to audiology. Although a hearing loss was documented in February 2005, the examiner noted that the definition of permanent threshold shift was not established as he was tested three times in February 2005, with the second test better than the first one, and the third test better than the second test. The examiner noted that permanent threshold shifts must be defined by repeatable results; furthermore, it is not known whether the shift of hearing documented in 2005 was conductive or sensorineural. Significantly, the examiner also noted that the Veteran was being treated for nasal congestion in 2005 and underwent a septoplasty surgery that year. The examiner stated that this finding, combined with the documented history of middle ear problems since childhood, and the fact that test results from February 28, 2005 were better than test results on February 25, 2008, which were better than February 23, 2005, lends credence to the possibility of middle ear involvement at the time. Furthermore, the Veteran was tested in September 2005, two months post discharge from active duty, and although he did complain of tinnitus, there were no complaints of hearing loss at that time. The Board finds the May 2011 VA examiner's opinion persuasive. It is based on a complete physical examination and a thorough review of the claims folder, to include in-service audiological findings. Also compelling, no medical professional has diagnosed the Veteran with a left ear hearing loss disability at any time post-discharge nor has any medical professional indicated a left ear hearing loss impairment aggravated by his military service. In fact, there is medical evidence to the contrary. In short, while the Veteran's service treatment records confirm he entered service with some amount of left ear hearing impairment, was exposed to in-service acoustic trauma, and complained of hearing loss during service, none of the medical evidence shows a hearing loss disability as defined by the regulations was incurred in or aggravated by his military service. Indeed, the Veteran has not met the definition of a hearing loss disability at any time post-service. The medical evidence also persuasively indicates the Veteran's in-service hearing impairment and complaints may have been related to a middle ear problem. In fact, the Veteran underwent a June 2005 septoplasty prior to separation from the military. The Board has considered the Veteran's statements and, indeed, concedes he was exposed to acoustic trauma during his military service. Although the Veteran is competent to describe hearing impairment, he is not competent to diagnose a hearing loss disability as defined by the regulations, which requires specific, objective audiological findings. See 38 C.F.R. § 3.385; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, however, there is no competent and probative evidence of a hearing loss disability, as defined by VA regulations, of the left ear at any time during the period under appellate review, or at any time post service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ SHEREEN M. MARCUS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs