Citation Nr: 1337872	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  10-23 418	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

 Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to February 1969.

This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in part, denied service connection for bilateral hearing loss and tinnitus.

The issues were remanded by the Board in February 2013 for additional development.

In May 2013, VA's Appeals Management Center granted service connection for tinnitus.  As this is a full grant of the benefit sought, it is no longer before the Board.  


FINDINGS OF FACT

The Veteran's current bilateral hearing loss was not demonstrated in service or in the year after service and is not related to a disease or injury in service.  


CONCLUSION OF LAW

The criteria for establishing service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112(a) (West 2002); 38 C.F.R. §§ 3.303, 3.385, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). 

VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In March 2009, a VCAA letter was issued to the Veteran with regard to his claim of service connection.  The letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date.  see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VA has also complied with its duties to assist the Veteran under the VCAA.  The evidence includes the Veteran's service treatment records, post-service private and VA treatment records, and the Veterans statements and adequate examinations.  There is no indication of relevant, outstanding records that would support the Veteran's claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c) (1)-(3).  

In October 2012 and February 2013 with an addendum to the examination in April 2013, the Veteran was afforded VA audiological examinations, and etiological opinions were proffered.  38 U.S.C.A. § 5103A(d).  The opinion reflects consideration of the entire record and was supported by reasons based on that record as well as research studies.  The Veteran's representative has pointed out the examiner did not specify the studies relied upon in rendering the opinion that there could not have been delayed onset hearing loss; but there has been no argument as to how specifying the studies would aid the Veteran.  He and his representative have offered no treatise or other evidence that would contradict the examiner's statement as to what medical studies had shown.  

The Board's remand was aimed at providing the Veteran with an adequate examination and obtaining an adequate opinion.  The Board's remand instructed that the examiner should consider the Veteran's reports as to the onset of his disability.  The Veteran's only recorded statement in this regard consist of his indication on the 2009 claim for benefits that hearing loss began "in service."  The examiner essentially responded to, and considered this statement, by providing reasons why the disability did not begin in service.

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the hearing loss issue in appellate status.

Criteria 

Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element in the case of a listed chronic disease is through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).  

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (overruled on other grounds Walker v. Shinseki); see 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Organic diseases of the nervous system, are listed chronic diseases, and as such, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service and are subject to service connection on the basis of continuity of symptomatology.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.

Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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.  See also Hensley v. Brown, 5 Vet. App. 155 (1993).

The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim.  The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to undercurrent causes.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

Background

At the Veteran's November 1965 examination for induction into service, pure tone thresholds, in decibels, were as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
-5
15
5
0
-5
LEFT
5
15
15
15
5

At an April 1966 flight examination, the Veteran's bilateral pure tone thresholds, in decibels, were as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
0
-10
-10
0
0
LEFT
-5
-5
-5
-5
-5

At an in-service hearing conservation examination in December 1968, pure tone thresholds, in decibels, were as follows: 

HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
5
15
15
LEFT
5
0
5
10
10

In the February 1969 separation examination, the Veteran's pure tone thresholds, in decibels, were as follows: 

HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
0
5
5
LEFT
5
5
5
10
0

The Veteran filed his initial claim for service connection for a bilateral hearing loss disability in February 2009.  

In a March 2012 VA examination, cerumen impaction was noted.  Attempts at removal were unsuccessful due to the texture and depth of cerumen. The Veteran was referred to his primary care physician for removal of the cerumen, and rescheduled for an audiological examination.

In an October 2012 VA examination, pure tone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
20
25
25
35
60
LEFT
20
25
30
35
65

Average pure tone thresholds, in decibels (dB), were 36 dB for the right ear and 39 dB for the left ear.  Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 98 percent in the right ear and 100 percent in the left ear.  
  
The examiner noted that the Veteran's claims file was reviewed.  The examiner noted a bilateral sensorineural bilateral high frequency hearing loss.  The examiner opined that Veteran's hearing loss was not at least as likely as not (less than 50/50 probability) caused by or as a result of an event in military service.    


In a February 2013 VA examination, pure tone thresholds, in decibels, were:

HERTZ
500
1000
2000
3000
4000
RIGHT
15
20
25
35
65
LEFT
10
25
25
35
65

Average pure tone thresholds, in decibels (dB), were 36 dB for the right ear and 38 dB for the left ear.  Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 94 percent in the right ear and 96 percent in the left ear.    

The examiner identified current a bilateral sensorineural high frequency hearing loss; however, he could not provide a medical opinion regarding the etiology of the hearing loss because of the unavailability of the claims folder.  

In April 2013 the examiner provided an addendum after reviewing the claims file.  He opined that the Veteran's hearing loss was less likely as not (less than 50/50 probability) caused by or as a result of in-service noise exposure.   The examiner noted that the Veteran's hearing was well within the normal range limits at the time of separation from service.  The examiner further noted that the thresholds were converted from ASA to ISO standards.  The current studies did not support the concept of delayed onset of hearing loss due to noise exposure.  

Further the Veteran's hearing loss was less likely as not (less than 50/50 probability) permanently aggravated by in-service noise exposure.  The examiner noted that the entrance and separation audiometric evaluations were converted from ASA to ISO and compared.  There was no significant threshold shift during his period of service.

Analysis

The record clearly documents that the Veteran has current bilateral sensorineural hearing loss as defined by 38 C.F.R. § 3.385.  There is also overwhelming evidence that the Veteran had excessive noise exposure in service.  He served in the Air Force, and was given hearing conservation examinations due to his exposure to aircraft noise.  An in-service injury is thus demonstrated.

The outcome of the Veteran's claim turns on whether the current disability can be related to the in-service noise exposure.

As detailed, numerous hearing examinations were administered in service, but no hearing loss was demonstrated.  The lack of in-service findings or documented complaints does not preclude a finding of service connection, but the only evidence of a possible link, between the current disability and service consists of the Veteran's report on his claim form that hearing loss began in service.

The Veteran; however, has not specifically reported a continuity of symptomatology.  Private treatment records dated from May 2008 to September 2010, include forms on which hearing impairment could be reported, but no complaints or findings were noted.  As recently as the October 2012, examination, the Veteran reported no impairment of daily activities or work from hearing loss.  This evidence weighs against finding a continuity of symptomatology.

The most probative opinion as to a link between the current hearing loss and service was provided by the VA audiologist in April 2013.  As noted, the examiner reviewed the claims folder, and otherwise considered an accurate history that included the Veteran's reports.  The opinion was definitive and supported by a rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  There are no contrary medical opinions of record.

The Veteran has opined, via his claim form, that the current hearing loss is related to noise exposure in service.  Such an opinion would; however, require medical expertise and the Veteran is not shown to have such expertise.  The record shows that although the Veteran had significant in-service noise exposure; he also worked in construction for 20 years and in an automobile production plant for 10 years after service.  Medical expertise would be required to say that the current hearing loss could have a delayed onset and be related to in-service noise exposure as opposed to other causes.  The Veteran's opinion is; therefore not deemed competent evidence of a nexus.  38 C.F.R. § 3.159(a).

There is essentially no evidence of hearing loss in service or to a compensable degree within one year of service.   A showing of compensable hearing loss would require a hearing examination.  38 C.F.R. § 4.85 (2013).  The Veteran has not reported any such testing within a year of his discharge from service and as discussed the evidence does not show that hearing loss was identified in service.  See 38 C.F.R. § 3.385.  A hearing defect was not identified at the February 1969 separation examination and he denied having ear trouble at the separation examination in February 1969.

As the preponderance of the evidence is against the Veteran's claim, reasonable doubt does not arise, and the claim must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs