Citation Nr: 1336300 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 12-35 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1969 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board has not only reviewed the Veteran's physical claims file, but also the electronic record maintained in the Virtual VA and VBMS system to ensure total review of the evidence. FINDING OF FACT A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to an event, injury, or disease in service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, the Board finds that the VA has satisfied its duties under the VCAA. Specifically, a letter was sent to the Veteran in September 2010 which detailed the claims process and advised the Veteran of the evidence and information needed to substantiate his claim. The letter further informed the Veteran of his obligations to provide necessary information to assist in his claim and the VA's obligations to obtain such evidence and information that is deemed to be in the VA's possession or that the VA has permission to obtain. The Veteran was also informed of VA's practices in assigning disability evaluations and effective dates for those evaluations. Moreover, the Veteran was afforded a VA examination (VAX) in December 2010. The examiner reviewed the case file, conducted the requisite hearing tests, and considered the Veteran's statements prior to rendering an opinion. Therefore, the Board finds that the examination was adequate for adjudication purposes. Further, the Veteran's service treatment records as well as service personnel records have been obtained and considered. Neither the Veteran nor his representative has identified any outstanding records that have not been obtained. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. For the foregoing reasons, the Board finds that VA has satisfied its duties to notify and assist the Veteran. Accordingly, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a) and 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Factual Background The Veteran served on board the USS Kyes (DD-787) from March 1972 to February 1973. The USS Kyes conducted periods of Naval Gunfire Support operation. See CURR Request, August 2008. The Veteran assisted with fire support mission by moving ammunition from the magazine to the "merry go round" room, directly below the rear gun mount. According to the Veteran's DD 214, he served as a stock clerk. There are no records of the Veteran's entrance and separation examinations. See Memorandum of Finding of Unavailability, May 2009. In July 1970, the Veteran underwent a medical examination but did not undergo a machine controlled audiological examination due to the machine being inoperative. However, his whispered voice test results were 15/15 bilaterally. In April 1976, the Veteran underwent a medical examination but did not undergo a machine controlled audiological examination. His whispered voice results were 15/15 bilaterally. In October 1979, the Veteran underwent a medical and audiological examination. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 15 LEFT 10 5 0 15 15 In the associated medical history, the Veteran reported that he had or previously had an ear infection with no drainage. There were no complaints of hearing loss in the Veteran's service records. The Veteran provided evidence that in May 2008, he underwent an audiological examination with a private facility. See Accuquest hearing test, May 2008. The exam reflected a score of 80 percent in the left ear and 84 percent in the right ear for the speech discrimination test. However, there was no indication as to whether the Maryland CNC test was administered. The facility did not provide an opinion about the Veteran's hearing. III. Service Connection The Veteran contends that his bilateral hearing loss is due to noise exposure while aboard the USS Kyes where he was "directly below the rear gun mount" and involved in "fire support missions." For the reasons that follow, the Board finds that service connection is not warranted. In order to obtain service connection under 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.303(a) (2013) a Veteran must satisfy a three element test: (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, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold 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 (2013). In the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent of more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. 38 U.S.C.A. § 1112(a)(1) (West 2002 & Supp. 2012). The term chronic disease includes organic diseases of the nervous system such as sensorineural hearing loss. 38 U.S.C.A. § 1101(3) (West 2002 & Supp. 2012); see also 38 C.F.R. § 3.309(a) (2013). Here, the Veteran has submitted competent and credible evidence that he has a current disability - namely bilateral hearing loss. The Veteran was afforded a VA examination in December 2010. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 30 50 55 LEFT 5 5 20 75 70 The examiner reported average hearing losses of 36.25 decibels for the right ear and 42.5 decibels for the left ear. The Maryland CNC speech recognition scores reflected 96 percent for the right ear and 92 percent for the left ear. The examiner diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in the right ear and normal to severe sensorineural hearing loss in the left ear. The Veteran's audiological results meet the criteria for hearing loss as defined by VA regulations. Thus, the evidence supports a finding of a current disability. Next, the Veteran has submitted evidence of an in-service injury. Specifically, the Veteran stated that while aboard the USS Kyes, he assisted in its fire support mission. See Veteran's VA Form 21-4138, August 2010. The Veteran contends that the USS Kyes fired over 10,000 rounds and that he was exposed to "acoustic trauma" when he moved ammunition to various parts of the ship, including "directly below the rear gun mount." Id. Accordingly, the Board accepts the Veteran's account of in service acoustic trauma. Having thus determined that the Veteran sustained acoustic trauma in service, the final question before the Board is whether the Veteran's current bilateral hearing loss is related to that in-service injury. However, for the reasons that follow, the Board finds that a relationship or "nexus" to service has not been established on either a direct or presumptive basis. See 38 C.F.R. §§ 3.303, 3.309 (2013). Here, the December 2010 VA examiner opined that it is less likely as not that the Veteran's hearing loss was caused by or a result of military noise. In support of her opinion, she indicated that she reviewed the case file and noted that the Veteran was "a storekeeper on a destroyer and also in charge of ammunition and gun related duties." She indicated that the Veteran had normal hearing upon entry; no complaints of hearing problems during service and no audiogram test results upon separation. She further noted that the Veteran was exposed to "frequent firing of the 5 inch guns." The examiner stated that the Veteran did not have much noise exposure post service. Nonetheless, the examiner opined that an "enlistment audiogram for the reserves dated 10/17/79 (after vet's period of active service) shows audiogram with normal hearing thresholds [in] both ears and no noise notches." Based on the foregoing facts, the examiner concluded that there was no nexus between the Veteran's current hearing loss and his service. The Veteran was also examined by a private audiologist in June 2013 where she opined that "due to [the Veteran's] history provided by his military records it is reasonable, in a fair and impartial mind to believe that some portion of his current diagnosed condition of bilateral hearing loss is at least as likely as not to be related to exposure to acoustical trauma while serving aboard a ship in the service." See Audiologist S.W., June 2013 Letter. Audiologist S.W. noted that she had reviewed the Veteran's case file and noted that on the Veteran's October 1979 hearing evaluation, he appeared to have "hearing loss at 4000 Hz in the left ear at 75dB." She further noted that the Veteran worked in retail after service, with no "exposure to occupational noise" and has not had any ear infections, surgeries or head trauma since service. Finally she opined that the Veteran's hearing loss "is consistent with hearing loss due to noise exposure as a contributing factor." The Board likewise acknowledges the Veteran's contentions that his current hearing loss is related to service. Specifically, the Veteran stated that his hearing loss began in the 1980s while he was working in retail. See Veteran's VA Form 21-438, August 2010. Additionally, at the December 2010 VAX, the Veteran told the examiner that "he noticed in college that for his classes in the lecture halls, he had to sit near the front or he had trouble hearing the professor." The Veteran also states that he had his hearing tested in 2008 by a private audiologist. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. The Board finds the December 2010 VAX opinion more probative than the June 2013 private audiologist and Veteran's statements. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The December 2010 VAX found the Veteran's 1979 audiological exam - six years after discharge - to show normal hearing and therefore concluded that the Veteran's hearing loss was not related to service. The December 2010 examiner reviewed the Veteran's case file and considered the Veteran's statements in forming her opinion. The June 2013 private audiologist found the Veteran's hearing loss related to service based on the same 1979 exam. However, it appears that the June 2013 audiologist misinterpreted the audiological findings from the 1979 examination. Specifically, where the audiologist thought the exam recorded hearing loss at 4000 Hz with 75dB was rather a normal hearing reading with 15dB. The June 2013 audiologist relied on this misinterpretation in her final opinion and therefore the Board assigns it little probative value. The Board acknowledges that the June 2013 audiologist reviewed the Veteran's case file and considered the Veteran's statements in her opinion; nevertheless, the Board finds that her opinion is not based on a totally accurate factual foundation and therefore finds it less persuasive than the December 2010 examiner's opinion. The Board is aware of the Veteran's statements as to the development of his hearing loss and does not question his credibility or his ability to perceive a decrease in hearing. There are several factors reducing the probative value of his statements, however. First, the Veteran had normal hearing six years after service while in the reserves. See 1979 audiological exam. Second, there was a prolonged period of time between his discharge from service and his first complaint of hearing problems Finally, he stated that he sought out testing in response to his hearing problems in 2008 - more than thirty years following discharge. Thus, while the Board has considered the Veteran's statements, it finds the December 2010 VAX opinion to outweigh them. Given that the Board has found the unfavorable December 2010 VA examination report opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran's claim for service connection, and the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs