Citation Nr: 1400502	
Decision Date: 01/07/14    Archive Date: 01/23/14

DOCKET NO.  10-24 526	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center 
in Fargo, North Dakota


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

R. Sauter, Associate Counsel






INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from November 1965 to August 1967, and had subsequent Reserve service.  

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied service connection for bilateral hearing loss.  The Board remanded the case in December 2012 for additional development.  The Board is satisfied that there was substantial compliance with the remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1.  Hearing loss was not "noted" on the service enlistment examination.

2.  The Veteran was exposed to loud noise in service, including during combat.

3.  Symptoms of hearing loss were not chronic in service.  

4.  Symptoms of hearing loss have not been continuous since service separation. 

5.  Bilateral sensorineural hearing loss did not manifest to a compensable degree within one year of service separation.

6.  The Veteran currently has a bilateral sensorineural hearing loss disability for VA disability compensation purposes.

7.  Currently diagnosed bilateral sensorineural hearing loss is not related to active service.


CONCLUSION OF LAW

The criteria for service connection for bilateral sensorineural hearing loss are not met.  38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant 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, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A.          § 5103(a); 38 C.F.R. § 3.159(b).

In this case, the VCAA duty to notify initially was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in October 2009.  This letter informed of the evidence required to substantiate the claim and of his and VA's respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned.  Thus, the Veteran has received all required notice concerning the claim.  The Veteran was also provided a March 2013 supplemental statement of the case.  

VA also has a duty to assist a veteran in the development of a claim.  This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim.  38 U.S.C.A. § 5103A;   38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished.  The claims file contains the Veteran's STRs, VA medical treatment evidence, and the Veteran's statements. 

The Veteran underwent a VA audiology examination in March 2013 to ascertain the nature and etiology of any currently diagnosed hearing loss.  38 U.S.C.A. 
§ 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The March 2013 VA examination is adequate because it was performed by a medical professional, and was based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. 
§ 3.159(c)(4).

The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  

Service Connection Legal Authority

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A.         § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

The Veteran's claimed bilateral sensorineural hearing loss is an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim.  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  
38 C.F.R. § 3.303(b).    

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies between 500-4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies between 500-4000 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.

At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of 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 (2013).  Only such conditions as are recorded in examination reports are considered as "noted."  38 C.F.R. 
§ 3.304(b).  When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed.  Crowe v. Brown, 
7 Vet. App. 238 (1994).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board must assess the credibility and weight of evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Analysis of Service Connection for Bilateral Hearing Loss

The Veteran contends that he has hearing loss as a result of his active service.  Specifically, he asserts that he was exposed to acoustic trauma while serving in combat in Vietnam.  He does not assert that symptoms of hearing loss have been continuous since service separation.  Rather, he contends that his current hearing loss, which had its onset several years after separation, was caused by the in-service acoustic trauma.  

At the August 1965 service entrance examination, pure tone thresholds, in decibels, were recorded as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15 (30)
15 (25)
15 (25)
unavailable
15 (20)
LEFT
15 (30)
15 (25)
15 (25)
unavailable
15 (20)

Service department audiometric readings prior to October 31, 1967 are converted from American Standards Association units to International Standard Organization units; therefore, in order to facilitate data comparison, the conversion is represented by the figures in parentheses.  The examiner at the August 1965 service entrance examination did not mark any abnormalities with regard to the Veteran's ears.  On his August 1965 report of medical history, the Veteran endorsed running ears and chronic or frequent colds, and reported "lots of wax in ears."  No audiometric readings were recorded upon separation from service in August 1967.  

The Veteran had an audiology evaluation in June 1971 in connection with a U.S. Army Reserves retention examination.  Pure tone thresholds, in decibels, were as follows:




HERTZ



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

The recorded pure tone thresholds indicate no bilateral hearing impairment beyond the normal stages in June 1971, six years after hearing impairment was recorded. 

In a November 2009 rating decision, the agency of original jurisdiction denied service connection for hearing loss on a direct basis.  On its face, the August 1965 audiogram appeared to reflect measures of hearing loss that were outside the normal range, that is, in excess of 20 decibels.  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  Thus, in its December 2012 remand, the Board questioned whether the above audiometric findings alone indicated that a pre-existing bilateral hearing loss disability was "noted" on the August 1965 service entrance examination report.  The Board determined that, if a hearing loss disability was "noted," then the Veteran's claim should be considered under a service aggravation theory of entitlement.  Thus, the Board instructed the agency of original jurisdiction to reajudicate the claim to determine whether any pre-existing bilateral hearing loss was aggravated during service.  

Pursuant to the December 2012 remand instructions, the Veteran was afforded a March 2013 VA audiology examination, to assist in determining whether any current hearing loss was aggravated by service.  On the authorized audiology evaluation in March 2013, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
45
55
55
LEFT
45
45
40
50
55

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 84 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz.  The VA audiologist concluded that the Veteran's bilateral hearing loss was not caused by or a result of an event in military service.  The audiologist explained that the June 1971 audiogram shows that the Veteran's hearing improved following the audiometric readings at enlistment, and thus was not aggravated by service.  The VA audiologist in March 2013 further explained that the August 1965 audiogram results did not indicate hearing loss, but rather a temporary threshold shift.  The VA audiologist on March 2013 opined that the August 1965 results were most likely due to a temporary physical condition such as cerumen impaction or an ear infection, or a discrepancy in the examination methods at enlistment.  Therefore, the August 1965 audiogram results do not indicate that the Veteran had a pre-existing disability.

The March 2013 VA audiology examination is highly probative medical evidence.  The VA examiner was informed of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that was supported by sound reasoning.  Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005).

Given the March 2013 audiologist's assessment that the June 1971 audiogram shows that the Veteran did not have pre-existing bilateral hearing loss, in reliance on this medical opinion, the Board finds that hearing loss was not in fact "noted" on the August 1965 service entrance examination report.  The August 1965 values recorded as audiometric data do not constitute "noting" of hearing loss.  Rather, the highly probative March 2013 VA examination indicates that the August 1965 audiometric results were due to a temporary physical condition that resolved while the Veteran was in service.  As indicated by the June 1971 audiometric results, the Veteran did not have a defect, infirmity, or disorder at that time, but rather, had a temporary physical condition.  

Notwithstanding the Board's December 2012 remand instructions, the Board now finds that the Veteran was in sound condition when examined, accepted, and enrolled for service.  No defects, infirmities, or disorders were noted at the time of the examination, acceptance, and enrollment.  See 38 U.S.C.A. § 1111.  Therefore, the Board will consider the claim for service connection on a direct basis.  This determination is not unfavorable to the Veteran, and is even potentially more favorable, because any hearing loss found to have been present during service would be found to have been incurred in service.  Additionally, if the nexus between his current hearing loss disability and service is established, compensation would be for the full extent of hearing loss, without deduction.  See 38 C.F.R. § 4.22 (2013).

Turning to the matter of direct service connection, the Board finds that the Veteran was exposed to loud noises in service.  The Veteran's combat status is evidenced by receipt of the Combat Infantry Badge and military occupational specialty as a light weapons crewman.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The credible history of in-service noise exposure presented by the Veteran also includes small arms fire, mortar fire, machine gun fire, bombs, and helicopter noise, which is consistent with the circumstances, conditions, and hardships of combat.

The Board finds that the evidence shows that symptoms of hearing loss were not chronic in service.  Rather, the evidence indicates that the temporary condition affecting the Veteran's hearing at enlistment was resolved.  As noted, the Veteran had normal hearing upon examination even several years after service in June 1971.

The Board further finds that the weight of the evidence demonstrates that symptoms of sensorineural hearing loss have not been continuous since service separation, and that hearing loss did not manifest to a compensable degree within one year of service separation.  As noted, the Veteran had normal hearing a few years after service in June 1971.  Additionally, a February 2009 VA audiogram shows normal hearing.  Notably, the Veteran has not asserted that symptoms of hearing loss have been continuous since separation, nor has he contended that sensorineural hearing 

loss manifested to a compensable degree within one year of service separation.  Rather, he asserts that his current hearing loss, which had its onset several years after service, was caused by in-service acoustic trauma.

The Board finds that the Veteran currently has a bilateral sensorineural hearing loss disability for VA disability compensation purposes that meets the criteria of 38 C.F.R. § 3.385.  As noted above, the March 2013 VA audiometric data indicates that the Veteran has mild bilateral sensorineural hearing loss.  

Finally, the Board finds that the weight of the evidence demonstrates that currently diagnosed bilateral sensorineural hearing loss is not related to active service.  As noted, the medical evidence provided by the March 2013 VA examiner indicates that the Veteran's current mild hearing loss is not related to service.  Although the August 1965 audiometric findings would indicate that the Veteran's hearing loss had its onset prior to service, the Board finds those findings to be of no probative value, given the findings of the March 2013 VA audiologist.

The Veteran has asserted that his current sensorineural hearing loss was caused by in-service acoustic trauma.  The Veteran is competent to report his in-service noise exposure, as well as observable symptoms of hearing loss, such as difficultly understanding other people.  See Layno, 6 Vet. App. 465, 470.  As a layperson, however, he is not competent to report that his current hearing loss disability was caused by noise exposure in service, however, because that issue presents a complex medical question requiring the opinion of a medical professional.  Jandreau, 492 F.3d 1372, 1377.

Accordingly, the March 2013 VA audiology opinion outweighs the lay assertion of nexus in the absence of even assertion of symptoms of hearing loss since service.   For these reasons, the Board finds that a preponderance of the evidence is against 

the Veteran's claim for service connection for bilateral hearing loss, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 
38 C.F.R. § 3.102.


ORDER

Service connection for bilateral sensorineural hearing loss is denied.




____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs