Citation Nr: 1500379 Decision Date: 01/06/15 Archive Date: 01/13/15 DOCKET NO. 10-49 170 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Y. Venters, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1975 and February 1991 to March 1991. He also served in the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the RO. In August 2014 the Board remanded the claim for further development. After completion of the requested development, the case has been returned to the Board. The Agency of Original Jurisdiction (AOJ) is found to have complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Bilateral hearing loss disability did not manifest in service or for many years thereafter, and is unrelated to service. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by service and organic disease of the nervous system (sensorineural hearing loss) may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). In this case, in a January 2010 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The January 2010 letter also informed the Veteran of the evidence needed to establish a disability rating and effective date for the claims on appeal. The April 2010 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the January 2010 letter meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment records, private medical records, VA examination reports, and statements from the Veteran. The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the AOJ, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006); See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and organic disease of the nervous system (sensorineural hearing loss) becomes manifest 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 in 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, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Generally, in order to prove service connection, there must be evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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, or 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 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 asserts that loud noise exposure while in service has caused the claimed bilateral hearing loss. Specifically, he asserts in-service noise exposure while serving as a tank unit commander resulted in hearing loss. The Veteran contends that he was exposed to excessive noise levels without the benefit of hearing protection. As noise exposure is consistent with the circumstances and conditions of his military occupation, the Board concedes that the Veteran had noise exposure in service. Service treatment records are negative for any complaints, diagnoses, or treatment for bilateral hearing loss. Enlistment audiogram examination dated 1970 shows hearing within normal limits from 500-4k Hz, bilaterally. Audiogram examination dated 1972 shows hearing within normal limits from 500-4k Hz, bilaterally. Separation audiogram examination dated 1975 shows right ear thresholds within normal limits from 1k-4k Hz, with 30 db threshold at 500 Hz; left ear thresholds within normal limits from 500-4k Hz. Routine audiogram examination dated 1981 shows puretone thresholds of 25 db or less from 500-4k Hz, bilaterally. Separation audiogram examination dated 1991 shows hearing within normal limits from 500-4k Hz, bilaterally. An April 2010 VA examination revealed the presence of bilateral hearing loss, although the Veteran's hearing in his left ear was still considered normal for VA purposes. The Maryland CNC word list produced scores of 100 percent bilaterally. After examination and review of the claims file, the examiner found that the Veteran's hearing loss is less likely as not a result of noise exposure during military service. The examiner noted the threshold shift at 500 Hz during service and opined that it was apparently transient as thresholds at 500 Hz during the examination were within normal limits. She also noted that a 500 Hz threshold shift is not indicative of noise induced hearing loss. Private medical records dated August 2011 did not contain an opinion regarding the origin of any present day hearing loss. The private examiner reported that a hearing test conducted on August 18, 2011 revealed normal hearing threshold levels in both ears. She also indicated that the speech discrimination testing utilizing the Maryland CNC word list produced scores of 96 percent bilaterally. The Veteran was afforded another VA examination in October 2014. During the examination the Veteran reported a history of military noise exposure from tanks, small arms, and mortars without the use of hearing protection devices. He denied occupational and recreational noise exposure. The examination shows bilateral hearing loss and the Maryland CNC word list produced scores of 92 percent bilaterally. After examination and review of the claims file, the examiner opined that the Veteran's hearing loss is less likely than not a result of noise exposure during military service. The examiner's rationale is that the Veteran showed no significant thresholds shifts while on active duty. He also stated that research suggests that based on current knowledge of cochlear physiology there is no sufficient scientific basis for the existence of delayed-onset hearing loss. He asserts that the Veteran's hearing loss could likely be caused form unreported noise exposure or presbycusis (age-related). The Board finds that the Veteran's assertions of exposure to noise during service are credible and consistent with the circumstances and conditions of his service. In addition, the above-cited medical evidence of record reflects that the Veteran currently has hearing loss disability. However, the evidence is against a nexus between the hearing loss disability and the Veteran's military service. The Board reiterates that the 1975 and 1991 separation examinations are negative for any complaints, diagnoses, or treatment for hearing loss. Rather, the ears, drums and audiometric findings were normal. Moreover, the Veteran's hearing loss did not manifest within a one year period from the date of termination of service. In addition, at no time did any professional relate the Veteran's hearing loss to service. The April 2010 and October 2014 VA examiners reviewed the claims file, examined the Veteran, and provided adequate rationales for their opinions that there was no nexus between the current hearing loss and noise exposure in service. As the VA-authorized examiners explained the reasons for their conclusions based on an accurate characterization of the evidence in the claims file, their opinions are entitled to substantial probative weight. They based the opinions on their examination of the Veteran, the Veteran's statements and medical evidence indicating that the onset of hearing loss is not attributed to noise exposure during service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of claimed disabilities is a factor that tends to weigh against claims for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The only other opinion is that of the Veteran. The Veteran is competent to testify to his observations, and the RO and the VA-authorized examiners conceded his in-service noise exposure, as does the Board. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). On the question as to whether current bilateral hearing loss disability is related to in-service noise exposure, however, the specific, reasoned opinion of the examiners who performed the VA-authorized examinations are of greater probative weight than the more general assertions of the Veteran, even assuming the Veteran's competence to opine on this complex medical question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). The weight of the evidence therefore reflects that the hearing loss disability did not manifest in service, sensorineural hearing loss disability did not manifest within the one year presumptive period or for many years thereafter, and there is no relationship between current hearing loss disability and the conceded in-service noise exposure. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for bilateral hearing loss disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for bilateral hearing loss disability is denied. ____________________________________________ Nathan Kroes Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs