Citation Nr: 1546020 Decision Date: 10/29/15 Archive Date: 11/10/15 DOCKET NO. 12-14 223 ) 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, to include as secondary to a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran had service from February 1981 to February 1985 and from February 1986 to March 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the Regional Office (RO) in St. Louis, Missouri. In December 2013 and November 2014, the Board remanded the claim for further development, which included additional VA medical examinations and opinion. In April 2015, the Board requested a VHA specialist opinion. The requested development has been complied with and the claim is ready for review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Bilateral hearing loss did not manifest in service or sensorineural hearing loss within one year thereafter, and the Veteran has not been shown to currently have bilateral hearing loss that is causally or etiologically related to his military service. 2. Bilateral hearing loss was not caused or aggravated by the service connected traumatic brain injury. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, nor may bilateral sensorineural hearing loss be presumed to have been so incurred; and it is not related to the service connected traumatic brain injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. Letters of February 2010, March 2010 and May 2010 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post service treatment records have been secured. VA examinations and a VHA medical advisory opinion in this matter. The Board finds that the medical opinion evidence, except as noted in the decision below, is adequate for rating purposes and sufficient upon which to make a decision on the appeal. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the hearing loss 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). II. Legal Criteria, Factual Background, and Analysis In February 2010, the Veteran submitted claims for entitlement to service connection for bilateral hearing loss and tinnitus. He asserted that his claimed disorders began during active service in 1993. The Veteran's lay statement reported that he worked onboard three different ships as part of gun mount crews, flight deck air operations, and a firefighting repair party that exposed him to naval gunfire, loud aircraft, and loud engine rooms. Service treatment records are negative for a history of hearing loss upon entrance into service. A June 1981 treatment record noted that the Veteran was exposed to gun fire and was positive for "noises in [his] ears." Throughout the Veteran's service he had numerous audiological examinations, to include hearing conservation program reports from 1981 to 1989. Hearing conservation data from December 1982 to September 1989 indicate a gradual worsening of the Veteran's hearing. The Veteran's left ear hearing acuity at 6000 Hertz shifted from 10 decibels in February 1981 to 30 decibels in February 1987 and right ear hearing acuity at 6000 Hertz shifted from 5 decibels in February 1981 to 20 decibels in September 1989. Notably, the Veteran's January 1985 and November 1990 treatment records reported left ear hearing acuity of 35 decibels at 500 Hertz. However, an April 1995 examination reported the Veteran's left ear hearing acuity was 15 decibels at 500 Hertz and 20 decibels at 6000 Hertz, and right ear hearing acuity was 5 decibels at 6000 Hertz. The Veteran's hearing acuity was within normal limits at the retirement examination. However, the Veteran's reported medical history upon retirement was positive for hearing loss. Service personnel records detailed that the Veteran's military occupational specialties were boatswain mate, navy recruiter canvasser, and security guard. In a September 2010 VA audiological examination, the Veteran provided a history of working in combat zones as a boatswain mate, recruiter, and police officer with related exposure to gunfire, small arms fire, and engine room and ventilator noise, with hearing protection. After service, the Veteran reported working at a production plant for a year with hearing protection and has since worked as a software engineer. He recreationally rode motorcycles for the past five years, mowed his lawn on a riding motorcycle while listening to an MP3 player, and had NASCAR season tickets where he wore headphones to listen to the drivers. The Veteran stated that tinnitus was recurrent, approximately twice per week, and began after he retired from service around 2000 or 2001. The VA examiner diagnosed the Veteran with mild to moderately-severe sensorineural hearing loss in the right ear and mild sensorineural hearing loss in the left ear. The examiner opined that hearing loss is "less likely as not caused by or a result of acoustic trauma" because his entrance and separation/retirement examinations were within normal limits, bilaterally, his audiometric configuration at separation was not consistent with acoustic trauma, he did not meet the criteria for service connection at separation, he was not involved in combat, and despite exposure to significant noise, there was no evidence of its effects present at separation. Finally, contributions from occupational and recreational noise exposure, as well as aging effects, could not be ruled out when evaluating the Veteran's current degree of hearing loss. The Board finds that the September 2010 VA examiner's opinion on the etiology of the Veteran's bilateral hearing loss is not adequate because it does not take into account service treatment records demonstrating a worsening of hearing acuity in service and the positive notation for hearing loss in his medical history at retirement. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding lay statements to be competent evidence of symptoms the veteran has actually observed that is within the realm of his personal knowledge). The VA examiner did not address the Veteran's in-service evidence of hearing loss, to include two treatment records documenting hearing acuity at 35 decibels in the 500 Hertz range and a worsening in hearing acuity at 6000 Hertz in both ears throughout the hearing conservation program. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Moreover, the VA examiner's rationale is inadequate because it relied on a finding that the Veteran's hearing was within normal limits at separation. Id. at 157 holding that even if hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation, medical evidence can establish service connection by showing that hearing loss is actually due to incidents during service); see also 38 U.S.C.A. § 1113 (West 2002). An addendum opinion was obtained in March 2014. At the time, the examiner opined that the bilateral hearing loss was not at least as likely as not related to noise exposure in service. The examiner reasoned that hearing thresholds were within normal limits at both entrance and separation for both ears. The Veteran had normal auditory thresholds at separation and a standard threshold shift did not occur for either ear when comparing entrance and separation evaluations. He noted that the Institute of Medicine (IOM 2005) concluded that based on current knowledge of cochlear physiology there is insufficient scientific evidence for delayed-onset of hearing loss secondary to military noise exposure. He noted the study further stated that hearing loss should occur at the time of the exposure and there is not sufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop years after military noise exposure. The available anatomical and physiologic evidence suggests that delayed post exposure noise induced hearing loss is not likely. If hearing is normal on discharge and there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. There is no nexus between any current hearing loss and military service, regardless of the cause of the hearing loss. In the May 2014 remand, the Board found that the March 2014 addendum opinion was adequate with regards to direct service connection. However, an opinion as to whether the hearing loss is related to the service connected TBI was not provided. Therefore, a new opinion was requested and obtained. In December 2014, the VA examiner provided an addendum opinion stating that the statements made in March 2014 examination report must stand as written based on the controlling documents which were cited. Hearing loss, either central or peripheral, which occurs after separation from military service due to service related traumatic brain injury would require a medical evaluation which is outside the scope of the VA C&P hearing evaluation. The best practice may be to refer the veteran to a neuro-otologist for this type of medical opinion. Given the examiner's addendum opinion, a specialist opinion was requested in April 2015 to be provided by an otolaryngologist. An undated opinion was received in July 2015 which was later clarified to have been provided by an otolaryngologist. In the opinion, the specialist noted a detailed history of both the Veteran's hearing loss and TBI. Thereafter, he provided an opinion stating that it is not at least as likely as not that the Veteran's bilateral hearing loss was caused by, or aggravated by, his service connected TBI. He provided a rationale stating that concurrent clinical notes relating to the TBI injuries do not mention symptoms of, or audiometric findings of, hearing loss. He noted that, although the traumatic brain injury exam of September 2010 contains an audiogram showing sensorineural hearing loss, the retirement study of August 1997 is normal. There is no medical reason in this case, or in general medically, to ascribe a progressive sensorineural hearing loss over a 13 year period to traumatic brain injury, directly or associated with noise trauma that might have been present also. He provided an example as follows: in a motor vehicle accident in which head trauma was sustained and airbag deployment cause noise-induced sensorineural hearing loss, the finding of the latter would be evident immediately or as soon as a valid audiogram were obtained. Such an associated loss would be evident at the time of, or very shortly after the injury itself. He noted that in the Veteran's case, the first head trauma was in 1983 and later one in 1993. Sensorineural hearing loss associated with traumatic brain injury would often have a concurrent temporal bone fracture. This is not described in the notes nor is evident on the CT scan records. The opining physician additionally noted that medication listed in the records for the Veteran's seizure disorder would not be associated with sensorineural hearing loss. The Board finds the specialist's opinion to be adequate. It was based on a thorough review of the record, on a correct factual premise and is supported by a full rationale. There is nothing in the record which would put to question the adequacy or competency of the opinion. Therefore, the Board places great probative value on the opinion. After a review of the evidence above the Board finds that the evidence preponderates against a finding of service connection for bilateral hearing loss disability. It is not in dispute that the Veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. Given his military occupation, it may also reasonably be found that he was exposed to excessive levels of noise in service. Moreover, he is currently service connected for a TBI. What he still must show to establish service connection for bilateral hearing loss is that it is related to his service, to include as due to exposure to noise trauma therein, or that it is related to the service connected TBI. Regarding whether the Veteran's bilateral hearing loss is related to his service, the medical evidence that specifically addresses this question consists of the September 2010, March 2014, December 2014 VA opinions against his claim and the specialist opinion received in July 2015 also against the Veteran's claim. As is noted above, the Board determined that for varying reasons the September 2010 opinion was inadequate. Thus, the only competent and adequate opinion directly addressing a nexus between the Veteran's current hearing loss and his service is the March 2014 medical expert opinion by a licensed VA audiologist finding that the Veteran's hearing loss was less likely than not incurred in or caused by his service. The audiologist reviewed the record and cited to factual data. He cited to medical literature, including a study by the IOM noting that a prolonged delay in the onset of noise-induced hearing loss was unlikely. As this opinion is by an audiologist competent to offer it, reflects familiarity with the entire record, and includes rationale with citation to supporting factual data it is probative evidence in the matter. Because there is no probative evidence to the contrary, the Board finds it persuasive. With regards to a relationship to the TBI, the only competent and adequate opinion is the specialist opinion received in July 2015. As noted above, the Board has found the opinion to be competent and adequate and places great probative value on the opinion. The Board also notes the Veteran's allegation that his hearing loss is related to service or his service connected TBI. However, while laypersons are competent to note decline in hearing acuity, under governing regulation outlined above, the etiology of hearing loss disability is best provided by medical personnel with the required expertise and knowledge in the area. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current bilateral hearing loss disability and his service, or the service connected TBI. Accordingly, there is no reasonable doubt to be resolved. This claim must be denied. ORDER Service connection for bilateral hearing loss disability is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs