Citation Nr: 1411407 Decision Date: 03/19/14 Archive Date: 04/02/14 DOCKET NO. 10-11 920 ) 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 Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to April 1983. This matter initially came before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was subsequently transferred to the St. Louis, Missouri, Regional Office. In January 2013, the Board reopened the claim for service connection for bilateral hearing loss and Remanded the claim for adjudication on the merits. Service connection for tinnitus was awarded, effective in 2003; no claim regarding tinnitus is before the Board for appellate review. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT The Veteran does not manifest hearing loss disability as defined for VA purposes. CONCLUSION OF LAW The criteria for service connection for hearing loss are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.385 (2013). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied by an initial letter sent to the Veteran in April 2009 that informed him of his duty and VA's duty for obtaining evidence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). This letter addressed the criteria for new and material evidence and the criteria for service connection. In its January 2013 decision, the Board granted the claim to reopen, thus, substantiating that claim. The claim for service connection was readjudicated after the Remand and development directed by Board. The claimant has not alleged that prejudice has resulted from any notice error, and the Board finds no indication of notice error or resulting prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in the development of a claim, which includes assisting the Veteran in the procurement of pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records have been associated with his claims files. The Veteran has been afforded VA examinations of his hearing, an expert medical opinion was obtained from the Veterans Health Administration (VHA) in 2012. The Veteran was afforded examination in March 2013, following the Board's Remand. The VA examination reports and VHA opinion address all factors required for adjudication of the claim at issue, and there has been substantial compliance with Remand instructions. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Stegall v. West, 11 Vet. App. 268 (1998). No further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. 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). Appellate review may proceed. Claim for service connection for hearing loss disability Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. High frequency sensorineural hearing loss is considered an organic disease of the nervous system and therefore a disability for which service connection on a presumptive basis may be granted. Under 38 C.F.R. § 3.303(b), the link between a chronic disease and a Veteran's service may be shown by lay or medical evidence of "continuity of symptomatology." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (for this purpose, terms "chronic disease" and "continuity of symptomatology" only apply to the listed diseases at 38 C.F.R. § 3.309(a)). 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 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 (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. To support his request to reopen the claim for service connection for hearing loss, the Veteran submitted a January 2009 private audiologic report, showing that the Veteran had a bilateral hearing loss. The private provider "cleared" the Veteran to obtain hearing aids. However, the examiner who conducted VA examination in May 2009 found that, although the Veteran had tinnitus, he did not manifest impaired hearing on objective audiometry testing. The examiner found the Veteran's very poor speech discrimination scores to be incongruent with his essentially normal hearing as measured by audiometry. The reviewer who provided a September 2012 VHA opinion indicated that the reliability of the Veteran's post-service audiology examinations in 2007 and 2009 was questionable, and recommended that the Veteran undergo additional testing, to include auditory brainstem testing (ABR), if a reliable hearing evaluation could not otherwise be obtained. A December 2012 outpatient treatment note shows that routine audiology care disclosed a mild high-frequency hearing loss at 4000 Hz and 6000 Hz and speech discrimination scores of 96 percent bilaterally. As noted above, the acoustic threshold at 6000 is not considered in determining whether a hearing loss disability is present for VA purposes. In March 2013, the examiner who conducted complete audiometric testing in compliance with VA regulations. Such testing did not reveal auditory thresholds for at least three of the frequencies at 26 dB or higher; nor was a single acoustic threshold above 40 at any frequency of the relevant frequencies; and there was no speech discrimination below 94 percent. Based on this testing, the examiner concluded that the Veteran did not have a hearing loss disability for VA purposes. This examination report addresses in-service and post-service audiologic examination results, including the audiology examinations conducted in January 2009 and December 2007. The examiner explained that the hearing patterns shown by the Veteran in service at the time of the 1982 audiology examination, and other in-service and post-service audiology examinations, with the exception of the 2007 and 2009 findings, were consistent with the pattern shown on the 2103 examination. The examiner also noted that, with all examinations other than the 2007 and 2009 reports, the examinations were internally consistent, that is, the hearing acuity thresholds were consistent with the speech discrimination scores. The examiner explained that all of the audiology evidence of record can be reconciled, with the exception of the 2007 and 2009 examinations, which the examiner opined were unreliable. Thus, the 2007 and 2009 audiology findings which are not reliable are not probative or persuasive to establish that a hearing loss disability was present in either ear at any time during the appeal period. The VA examiner has provided a report of an examination which complies with governing regulations regarding the frequencies to be tested and the type of speech discrimination testing (Maryland CNC test) to be used. The report discusses the Veteran's service treatment records and his post-service history, and provides a rationale for each opinion expressed, and the rationale references specific clinical findings. This report of 2013 VA examination, which is unfavorable to the Veteran's claim, is the most probative and persuasive evidence of record. The examiner noted that the results of the March 2013 VA examination are internally consistent, that is, that the speech discrimination is at a level consistent with the demonstrated acoustic thresholds. The examiner further concluded that the March 2013 results were consistent with the routine examinations conducted in November 2011 and December 2012, and thus were reliable. The examiner also opined that the 2011 and 2012 audiology reports, like the 2013 testing, showed that the Veteran did not manifest a current hearing loss disability. The Board notes that the report of the 2011 audiometry and speech discrimination testing discussed by the examiner is not associated with the claims files (paper or electronic) before the Board. However, the Board may rely on the examiner's opinion that no hearing loss disability was shown in 2011. The facts underlying the examiner's conclusion that the 2013 examination report is consistent with the 2012 audiometry examination are of record. The examiner accurately stated the acoustic thresholds and speech discrimination shown in the December 2012 audiology evaluation. The examiner's conclusion that the findings on 2013 audiology examination were consistent with the 2012 findings is probative and persuasive, regardless of the availability or non-availability for appellate review of the 2011 findings. The examiner concluded that all of the audiology evidence of record, with the exception of the 2007 and 2009 findings, could be reconciled. With this finding, and given the consistency of 2011, 2012, and 2013 audiologic evaluations, the examiner concluded that ABR examination was not required. Thus, the examiner explained why the results of the audiology testing are consistent with the recommendations made by the VHA reviewer and why no further testing is required. The Veteran is competent to report that he experiences difficulty hearing in certain circumstances, as this information that comes to him through his senses. However, as a lay person, the Veteran is not competent to determine whether his difficulty "hearing" is symptomatic of impairment of hearing acuity or is due to tinnitus. The Board notes that service connection for tinnitus was effective in 2003. As there is not current hearing loss disability for which service connection may be granted, hearing loss disability may not be presumed service-connected and may not be established by lay evidence of continuity of symptomatology. The preponderance of the credible, competent, and persuasive evidence establishes that the Veteran does not currently manifest bilateral hearing loss disability. There is no reasonable doubt to be resolved in the Veteran's favor. In the absence of a current hearing loss disability at any time during the appeal, service connection for hearing loss disability cannot be granted. [Continued on Next Page] ORDER The appeal for service connection for bilateral hearing loss is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs