Citation Nr: 1337565 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-10 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from October 1966 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal following an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2011, the Veteran testified before the undersigned member of the Board during a videoconference hearing. In February 2012, the Board remanded the Veteran's claim for additional development. Following completion of the development requested the Appeals Management Center (AMC) issued the Veteran a supplemental statement of the case (SSOC) in May 2012, continuing the denial of the Veteran's claim. In June 2012, the Veteran submitted additional argument consistent with previous arguments that service connection was warranted for hearing loss. The Veteran's appeal has since been returned to the Board for further appellate review. FINDING OF FACT Hearing loss was not demonstrated in service or within one year of separation from service, and the only competent evidence on the question of a medical nexus between current hearing loss and service weighs against the claim. CONCLUSION OF LAW The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112(a), 1113, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. In this respect, through a pre-decisional notice letter, dated in October 2007, the RO notified the Veteran of the legal criteria governing his claim and the evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. The RO also requested that the Veteran submit evidence in support of his claim. Additionally, the October 2007 letter provided the Veteran notice regarding the assignment of effective dates and disability rating elements. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The Veteran's service treatment records (STRs) have been obtained and associated with the claims file. The Veteran was provided a VA examination in connection with his claim, which includes a medical opinion. The Veteran has also submitted argument and evidence in support of his claim, which includes a private audiogram, as well as statements from his mother and a service member who served with the Veteran. The Veteran failed to respond to the RO's request in February 2012 that he submit a completed VA Form 21-4142 ((Authorization and Consent to Release Information to the Department of Veterans Affairs) to allow the RO to obtain any available audiograms from his former employer. Additional action is otherwise not deemed warranted to comply with the duty to assist in connection with the claim on appeal. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In this regard, the evidence must demonstrate (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; (3) and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167-67 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing will be considered to be a disability for purposes of service connection under VA regulations when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels (db) or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has alleged that his hearing loss is related to his period of service. He contends that he was not provided effective hearing protection, that he was exposed to weapons' fire, and that a service revolver was inadvertently discharged near his left ear, resulting in acoustic trauma. The combination of these factors, he claims, has resulted in his current hearing disability. The Board notes that the Veteran has not contended that he was diagnosed or treated in service for hearing loss. Notwithstanding that fact, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A review of the Veteran's STRs does not reflect complaints, findings, or treatment for hearing loss. Of note, while the VA examiner has reported that the Veteran's service separation audiogram was conducted on September 12, 1969, the actual date of the Veteran's pre-separation physical and audiogram, per a Report of Medical Examination, was June 12, 1969. Additional relevant evidence of record consists of a buddy statement from a soldier who served with the Veteran recounting that a service revolver inadvertently discharged near the Veteran's left ear. The Veteran testified that following the discharge of the weapon that he experienced more pronounced ringing and hearing loss in his left ear than his right. A statement from the Veteran's mother reflects that the Veteran's hearing was fine when he entered the military but that he had problems hearing after being separated from service. Otherwise, of record is a work-related audiogram dated in October 1978 from the Veteran's former employer. The audiogram documents increased pure tone thresholds in the right ear as compared to those recorded at separation from service, but does not reflect hearing loss for VA disability purposes under 38 C.F.R. § 3.385. With respect to the left ear, recorded pure tone thresholds reflect hearing loss for VA disability purposes. The October 1978 audiogram, the first documented evidence identifying post-service hearing loss, does not identify the etiology or origin of the Veteran's hearing loss. The Veteran was examined in January 2008 for VA purposes. The audiological test at that time was found not to be reliable and/or valid based on discrepancies in the testing responses from the Veteran. A subsequent audiological examination was conducted in March 2008 and its findings were consistent with bilateral sensorineural hearing loss. With regard to his history, the Veteran reported that he did not use hearing protection in service, but following service did use hearing protection during work and recreational activities. The March 2008 VA examiner considered the Veteran's history and the evidence of record and determined that the Veteran's tinnitus (also claimed by the Veteran at that time as a service-connected disability) was related to acoustic trauma in service but not the Veteran's hearing loss. The examiner explained that the Veteran's hearing had been within normal limits at the time of service entrance as well as at the time of service separation, and that there had been no negative change. The March 2008 VA examiner provided an addendum medical opinion in April 2012. The examiner again reviewed the Veteran's claims folder. The examiner addressed concerns about the finding that tinnitus was related to acoustic trauma in service but not the Veteran's hearing loss. The examiner commented: A review of the C-file revealed the results of two audiometric examinations that were administered to the Veteran at or near his time of active military duty. The first was administered on [September 20, 1966] and is labeled as a pre-induction physical, and those audiometric results demonstrated hearing within normal limits bilaterally. An ETS audiometric examination was administered on [September 12, 1969], and again revealed hearing within normal limits. A comparison of these two sets of data revealed no significant worsening of hearing while the Veteran was on active duty. (Parenthetically, as noted above, the September 12, 1969 audiometric examination referenced by the examiner actually took place on June 12, 1969.) The examiner also commented: I do attach significance to lay reports of disability, but, in my opinion, lay evidence is superseded by direct audiometric evidence in the C-file when the two pieces of evidence conflict with each other, as they do in this case. The record clearly shows that the Veteran's hearing was within normal limits at the time of military discharge, and had not worsened over the course of the Veteran's military duty. The examiner also explained that noise-induced tinnitus could exist in the presence of clinically normal hearing. The examiner cited to supporting medical literature on the subject. It was noted that the original opinion remained unchanged and that it was less likely than not that the Veteran's hearing loss was the result of military noise exposure. In the present case, the post-service medical evidence demonstrates that the Veteran does have hearing loss that meets the requirements of 38 C.F.R. § 3.385. However, the only competent medical opinion to address the relationship between the Veteran's current hearing loss and his period of service, that of the March 2008 VA examiner, found that the Veteran's current hearing loss was not related to his period of service. The VA examiner's opinion is based on a review of the claims file, to include lay evidence, as well as an audiometric evaluation. In particular, the VA examiner, in the April 2012 addendum medical opinion, as identified above, noted that he did attach significance to lay reports but nonetheless found the military service audiometric findings to be persuasive. The Board finds the VA examiner's opinion competent and probative of the matter under consideration. It is based on consideration of both lay and medical evidence, and contains not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board has weighed the Veteran's lay history against the opinion of the VA examiner. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case-whether the Veteran's hearing loss is related to his period of service falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1) (2013). Furthermore, while the Board may not consider the absence of evidence as substantive negative evidence, it still may draw a reasonable inference from a lack of notation of a condition in a medical report, if the report would be expected to carry such information. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Board notes that audiograms measure hearing acuity. The audiograms administered in service do not reflect, per the VA examiner, a worsening of the Veteran's hearing from the time of entrance onto active duty to the time of separation. Furthermore, the Veteran's hearing at separation was identified as normal. As such, notwithstanding the Veteran's report, the Board does not find the Veteran to have had hearing loss at the time of separation from service. While consideration has been given to the Veteran's lay testimony, the Board assigns greater probative weight to the VA examiner's opinion in light of its thoroughness and the explanations provided, as well as the competency of the examiner providing the opinion. Implicit in the examiner's conclusion is a finding that any report by the Veteran that he was experiencing hearing loss during service is not believable. This is so because it would not have been possible to experience hearing loss when none existed. Furthermore, the American Medical Association defines "acoustic trauma" as "[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire." See Reeves v. Shinseki, 682 F. 3d 988, 1003 (Note 7) (Fed. Cir. 2012), citing American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003). An acoustic trauma can cause permanent hearing loss, but does not necessarily do so. Id. As such, the VA examiner's finding that the Veteran's hearing loss was not related to service, notwithstanding conceded noise exposure in service, has support in the medical literature. There is absent from the record competent evidence linking any current hearing loss to the Veteran's period of service or within one year of service, or necessarily refuting the VA examiner's opinion. No medical professional provides findings or opinions to that effect, and neither the Veteran nor his representative has presented or alluded to the existence of any such medical evidence or opinion. The October 1978 work-related audiogram from the Veteran's employer, as noted above, identifies hearing loss but does not identify the etiology or origin of the disability. The Board emphasizes that it does not question that the Veteran was exposed to noise during service. Nevertheless, under the circumstances-given the lack of competent medical evidence relating the Veteran's hearing loss to his active military service-the Board concludes that service connection for hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hearing loss is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs