Citation Nr: 1500198 Decision Date: 01/05/15 Archive Date: 01/09/15 DOCKET NO. 10-27 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2011, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. In April 2014, the Board remanded this matter for additional evidentiary development. FINDINGS OF FACT 1. No current right ear hearing loss, which meets VA standards under 38 C.F.R. § 3.385, has been shown. 2. The Veteran's current left ear hearing loss is not related to his military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2014). The RO's September 2009 letter advised the Veteran of the elements of VA's notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letter also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the RO satisfied the notice requirements with respect to the issue on appeal. The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records and all identified post-service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In May 2014, the Veteran was provided with an audiological examination. After reviewing the Veteran's claims file, reviewing with the Veteran his history of hearing loss, and examining the Veteran, the examiner provided medical opinions concerning the existence and etiology of the Veteran's hearing loss and provided supporting rationale for the opinions expressed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to the Board's April 2014 remand, the RO was directed to schedule the Veteran for an examination to address whether the Veteran currently has hearing loss, and if so, whether it is related to his military service. In May 2014, the Veteran was provided with the above-referenced VA audiological examination. Accordingly, the directives of the Board's April 2014 remand have been met. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that additional evidence relevant to the issue being addressed is available and not already part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. II. General Legal Criteria and Analysis Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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). Generally, the evidence must show: (1) the existence of a present hearing disability; (2) in-service incurrence or aggravation of the disability; and (3) 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, 1166-67 (Fed. Cir. 2004). For VA compensation purposes, impaired hearing will be considered to be a disability when the auditory threshold level in any of the frequencies 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. 38 C.F.R. § 3.385. The Veteran is seeking service connection for bilateral hearing loss. He attributes this condition to his inservice exposure to hazardous noise levels. Specifically, he reported exposure to loud noise from aircraft-launching catapults while serving onboard an aircraft carrier. The Veteran served on active duty in the Navy from April 1984 to July 1987. His September 1983 enlistment examination noted that his ears were normal. The Veteran's service treatment records are silent as to any complaints or diagnoses of hearing loss. A separation examination does not appear to have been conducted. In February 2009, the Veteran filed his present claim seeking service connection for bilateral hearing loss. On the application form, the Veteran denied having received any treatment for this condition. In August 2010, a VA audiological examination was conducted. The VA examination report noted the Veteran's history of noise exposure while serving onboard an aircraft carrier. An audiological evaluation was conducted and did not show hearing loss for VA purposes in either ear. Id. The VA examiner noted that the Veteran's current hearing loss was non-disabling for VA adjudication purposes. The VA examiner further opined that the Veteran did not have a compensable bilateral hearing loss due to or related to his noise exposure during service. In December 2010, a VA supplemental medical opinion was obtained. The VA examiner noted that the veteran's claims file had been reviewed. The examiner noted that it was not possible to state without resorting to mere speculation that the Veteran's non-disabling hearing loss was related to his military service. In support of this opinion, the VA examiner noted the absence of a separation examination which could be used to determine if the Veteran's hearing had changed during service. A December 2011 hearing evaluation was received from a private audiologist. The audiological findings noted on the report indicate that the Veteran currently has left ear hearing loss, i.e. 40 decibels at the 4000-Hertz level. 38 C.F.R. § 3.385 (2014). Right ear hearing loss was not shown for VA purposes. Id. The private audiologist then opined that the Veteran's hearing loss was most likely caused by or the result of his military service. A May 2013 VA audiology consultation report noted the Veteran's complaints of difficulty hearing. An audiological evaluation was conducted and the results did not show current hearing loss in either ear as defined by VA purposes under 38 C.F.R. § 3.385. The report concluded with an assessment of normal sloping to mild sensorineural hearing loss, bilaterally. The report also noted that these findings revealed essentially no changes since his prior audiological examination in 2010. In May 2014, a VA audiological examination was conducted. The VA examiner noted that the Veteran's claims file had been reviewed. An audiological evaluation was conducted and did not show current hearing loss, as defined by VA purposes under 38 C.F.R. § 3.385, in either ear. The VA examiner then opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. In support of this opinion, the examiner stated, "[w]ith the noise exposure the Veteran was exposed to and the hearing loss noted on today's examination, as well as the hearing loss being within the normal progression for age, the [Veteran's] hearing loss is less likely as not related to military noise exposure." Initially, the Board finds that Veteran's statements and testimony are competent evidence to relate a history of noise exposure during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Board finds that the Veteran was exposed to noise during his active duty service. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for bilateral hearing loss. There is no competent evidence showing that the Veteran has sufficient right ear hearing impairment to qualify as a disability for VA compensation purposes. 38 C.F.R. § 3.385. Audiological examinations performed in August 2010, December 2011, May 2013, and May 2014, indicate that the regulatory criteria for right ear hearing loss have not met. In the absence of competent medical evidence that a right ear hearing loss disability exists, the criteria for establishing service connection for right ear hearing loss has not been established, and service connection for right ear hearing loss is not warranted. 38 C.F.R. § 3.303. As for the Veteran's current left ear hearing loss, his available service treatment records do not show any complaints of hearing loss during service. Following his separation from service, the first post service reference to or diagnosis of hearing loss is not shown until 2009, over 21 years after the Veteran's discharge from military service. After reviewing all of the evidence in the claims file, the VA examiner in May 2014 opined that the Veteran's current bilateral hearing loss was "less likely than not" related to his military service. The Board finds this opinion to be the most probative evidence of record as to whether the Veteran currently has any hearing loss related to his military service. The opinion was based upon a complete review of the record, an audiological examination of the Veteran, and the VA examiner provided a supporting rationale for the opinion provided. While the Veteran's inservice noise exposure is not disputed, the Veteran as a layperson has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, even assuming the Veteran's assertions do constitute a continuity of symptomatology, sensorineural hearing loss was not noted during service, making it impermissible to establish service connection for the chronic disease of sensorineural hearing loss as an other organic disease of the nervous system on that basis. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board also finds very little probative value in the December 2011 medical opinion provided by the Veteran's private audiologist. The private audiologist was not shown to have reviewed any inservice or post service treatment reports; failed to identify or discuss the source of the Veteran's inservice noise exposure; and did not discuss or consider any history of post service noise exposure. The private audiologist also failed to provide any rationale in support of the opinion provided. Accordingly, the preponderance of the evidence is against the Veteran's claim. As there is no doubt to be resolved, service connection for bilateral hearing loss is not warranted. ORDER Service connection for bilateral hearing loss is denied. _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs