Citation Nr: 1512643	
Decision Date: 03/25/15    Archive Date: 04/01/15

DOCKET NO.  13-14 337	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for hearing loss.  


REPRESENTATION

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


ATTORNEY FOR THE BOARD

M. Pryce, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1994 to December 1998.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.


FINDING OF FACT

Any hearing loss the Veteran experiences did not begin during military service and did not undergo any worsening during service.


CONCLUSION OF LAW

The Veteran does have hearing loss that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014), requires VA to assist a claimant in obtaining evidence necessary to substantiate a claim.  It also requires VA to notify the claimant and the claimant's representative of any information, medical evidence, or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim.  See 38 U.S.C.A. 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). 

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In the present case, the RO received the Veteran's claim for service connection for, among other things, bilateral hearing loss in February 2011.  In a letter dated February 23, 2011, the Veteran was notified of the evidence required to substantiate the underlying service connection claim, which the Board finds provided the Veteran with adequate VCAA notice and afforded him a meaningful opportunity to participate in the development of his claim.  Further, neither the Veteran nor his representative raised an issue with regard to the adequacy of notice provided in this case. 

Regarding the duty to assist, the Board finds that VA has fulfilled its obligation to assist the Veteran.  All available evidence pertaining to the matter decided herein has been obtained.  The evidence includes his VA treatment records, VA examination reports, and lay statements from the Veteran and his representative.  

The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); 38 C.F.R. § 3.159(c)(4) (2011).  A medical opinion is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions," Stefl, 21 Vet. App. at 124-25, and the "examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).  Thus, while there is no requirement imposed on a medical examiner to provide a statement of reasons or bases in support of his or her opinion, Ardison, supra, the clinician must support his or her medical findings with adequate medical analysis.  Stefl and Nieves-Rodriguez, supra.  Further, it is incumbent on an examiner to consider all of the relevant evidence before forming an opinion.  Stefl, 21 Vet. App. at 124; Caffrey v. Brown, 6 Vet App. 377, 381 (1994) (the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination").

Here, the Veteran was afforded VA examinations in April 2011 and December 2013.  Particularly, with the December 2013 VA examination report, the Board is satisfied that the examiner considered all evidence available, to include conducting a physical and audiological examination of the Veteran, and provided an opinion sufficient for the Board to make a fully formed decision in this matter.  Thus the Board is satisfied that the duty-to-assist was met in this case.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

II.  Analysis

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303(a), 3.304 (2014).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and develops an organic disease of the nervous system, to include sensorineural hearing loss, that becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014).  

In the absence of evidence establishing a presumption of in-service incurrence, service connection may also 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 service.  38 C.F.R. § 3.303 (d).  

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).  See 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 the purposes of applying the law 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 is 40 decibels or greater; or when the auditory threshold 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 38 C.F.R. § 3.385 (2014).

In the present case, on December 15, 1994, the Veteran submitted for an audiological examination in connection with his enlistment in the military, the report of which noted the following pure tone thresholds, in decibels:
 



HERTZ



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

The Veteran was noted to have pure tone threshold scores of 40 decibels in the right ear and 30 decibels in the left ear at 6000 Hz.  

On December 28, 1994, the Veteran was again given an audiological examination, the report of which noted the following pure tone thresholds, in decibels:
 



HERTZ



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

He had puretone thresholds of 5 and 20 at 6,000 Hz on the right and left, respectively.  

On October 22, 1998, the Veteran was again given an audiological examination, the report of which noted the following pure tone thresholds, in decibels:
 



HERTZ



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

He had puretone thresholds of 30 and 20 at 6,000 Hz, in the right and left ear, respectively.

A note contained in the Veteran's VA treatment records indicates that in November 2004, he reported experiencing hearing loss since his military service.  No testing was done at that time.  

In April 2011, the Veteran was afforded a VA examination in connection with his claim for service connection for bilateral hearing loss.  The report of that examination noted the following pure tone thresholds, in decibels:








HERTZ



500
1000
2000
3000
4000
RIGHT
55
55
60
60
65
LEFT
55
60
60
60
60

Speech recognition was 96 percent for the right ear and 96 percent for the left ear based on the Maryland CNC Test.  The VA examiner stated that the Veteran exhibited non-organic hearing loss behavior.  Specifically, his hearing thresholds for pure-tones were not consistent or repeatable.  As the VA examiner attempted to re-check the thresholds, the Veteran's results indicated poorer and poorer hearing.  The examiner noted that while word recognition was achieved at 96 percent correct in each ear, the presentation level was at or below the volunteered threshold level on the pure tone audiogram.  He then gave a diagnosis of non-organic hearing loss and stated that the pure tone results were of poor validity.  The word recognition scores were deemed valid.  The examiner then stated that the Veteran's non-organic hearing loss was less likely than not related to his active military service because there was no change in hearing noted between 1994 and 1998.

In December 2013, the Veteran was again afforded a VA examination in connection with his service connection claim.  The report of that examination noted the following pure tone thresholds, in decibels:
 



HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
20
20
LEFT
20
15
20
30
30

Speech recognition was 94 percent for the right ear and 96 percent for the left ear based on the Maryland CNC Test.  The VA examiner noted some sensorineural hearing loss in the frequency of 6000 Hz bilaterally, and at the 500-4000 Hz range in the left ear.  He then opined that the Veteran's hearing loss was less likely than not caused by or related to an event in his military service.  Particularly, he noted that the Veteran reported being exposed to line fire training with heavy weaponry, during which he used hearing protection.  He also reported post-military recreational noise exposure to include target shooting with hearing protection at all times, listening to loud music, using a chainsaw with hearing protection 50 percent of the time, and riding a lawn mower without hearing protection.  The examiner opined that the fact that the Veteran's hearing did not shift during service, and the fact that the results of his hearing examination were significantly improved from those in April 2011, made it particularly likely that the Veteran's hearing loss, if any, was non-organic and not connected to service.  He also stated that distortion-product otoacoustic emission tests supported those results.  The examiner also stated that hearing loss existed at 6000 Hz prior to service (citing to the December 15, 1994 enlistment examination), but that it was not aggravated beyond normal progression because his separation examination in October 1998 actually showed improvement in both ears at that frequency. 

In light of the above evidence, the Board finds that service connection for hearing loss is not warranted in this case.  Regarding any presumption that the Veteran's hearing loss manifested in service, the Board finds that the Veteran is not entitled to this presumption.  There is no indication that sensorineural hearing loss manifested itself to a compensable degree within the first year following the Veteran's separation from military service.  Indeed, his separation examination revealed a single abnormal result at 6,000 Hz, which was on the left side, and which would not suggest a compensable rating.  A compensable rating was shown by the 2011 audiometric results, but as noted above, these results were not considered valid, and they were many years after the Veteran's separation from service.  Thus, the Board finds that the Veteran's hearing loss may not be presumed to have been manifested in service.

As for the December 2013 VA examiner's opinion that hearing loss pre-dated service, the Board notes that that opinion concerned only the 6000 Hz range, and the examiner correctly noted that better results were obtained in 1998 prior to the Veteran's separation from service.  This evidence, as the examiner noted, represented an improvement, not a worsening, during military service.  Therefore, the Board is satisfied that the Veteran did not have hearing loss prior to service that was aggravated thereby.

The Board notes that the Veteran was awarded a Marksman Rifle Badge while in service, and therefore likely was exposed to loud noises while in service.  However, the assertion that the Veteran has a diagnosis of bilateral hearing loss traceable to service is not supported by the record.  His April 2011 VA examination showed pure-tone thresholds indicative of hearing impairment under 38 C.F.R. § 3.385.  However, the April 2011 VA examiner discounted those results as being inconsistent and unrepeatable and stated that they are of poor validity, finding that only the word recognition scores were valid.  Those scores were 96 percent in both ears - a percentage which would not indicate hearing impairment for VA purposes.  § 3.385.  Further, in December 2013, the Veteran's hearing loss was not exhibited by puretone thresholds above 40 for any frequency considered for VA purposes.  While he did have scores of 30 decibels at 3000 and 4000 Hz in his left ear, he did not exhibit hearing loss greater than 26 decibels at any other level.  See 38 C.F.R. § 3.385 (requiring decibels of 26 or greater for at least three frequencies for a diagnosis of hearing loss).  In his right ear, he did show Maryland CNC results tests of 94 percent, but that number is not below the threshold to be considered hearing loss for VA purposes.  See 38 C.F.R. § 3.385 (requiring Maryland CNC Test results that are less than 94 percent for a showing of impaired hearing).  Consequently, given the uncontradicted opinion that the 2011 puretone threshold results were invalid, which opinion is supported by the subsequent test showing normal hearing, the Board finds that the Veteran does not have hearing loss traceable to his period of military service.

The Board finds particularly probative the opinion provided by the December 2013 VA examiner.  That examiner conducted an examination of the Veteran, considered the Veteran's history of in-service and post-service noise exposure, reviewed all evidence in the claims file including all previous audiological examination reports, and provided an opinion based on known medical principles that it is less likely than not that non-organic hearing loss is related to the Veteran's in-service noise exposure between 1994 and 1998.  

Although the Veteran asserts that he has hearing loss due to his exposure to noise in service, the Board recognizes that etiology of dysfunctions and disorders is generally a medical determination and must be established by medical findings and opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Board acknowledges that lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Id. at 1377 n.4.  The general principle that acoustic trauma may lead to hearing loss is commonly known and, therefore, the Veteran's assertion that noise exposure in service resulted in his current hearing loss has some tendency to make a nexus more likely than it would be without such an assertion.  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.  The Board finds the December 2013 VA examination report more probative than the Veteran's opinion regarding the cause of his hearing loss.  The examiner is a medical professional and was able to review the record, including the Veteran's history and opinions.  Moreover, implicit in the opinion provided by the examiner is the notion that hearing loss would not have been discernable to the Veteran at the time he left military service because his hearing was normal by objective testing.  Consequently, the Veteran's statements of continuity since service are outweighed by the examiner's opinion.  

For the reasons set forth above, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss.  See 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2014).


ORDER

Entitlement to service connection for hearing loss is denied.  



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs