Citation Nr: 1600803 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 12-31 028A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1941 to August 1961. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2013, the Veteran testified at a videoconference hearing before the undersigned; a transcript of the hearing is of record. The Board remanded the appeal in November 2013, January 2015, and April 2015 for additional evidentiary development. In September 2015, the Board requested a Veterans Health Administration (VHA) opinion, which was provided in September 2015. The Veteran was provided with a copy of the VHA opinion in September 2015, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903; responses were received from the Veteran and his accredited representative in December 2015. The case has now been returned to the Board for further appellate action. The issue of entitlement to service connection for recurrent cerumen impaction has been raised by the record. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014 & Supp. 2015). FINDING OF FACT A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For service connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. The record reflects that the RO provided the Veteran with the requisite notice in June 2009, prior to the initial February 2010 rating decision. Specifically, the June 2009 letter advised the Veteran of the evidentiary requirements for service connection, the division of responsibility between the Veteran and VA for obtaining evidence, and the process by which disability ratings are assigned. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied. Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRS) have been associated with the claims file. All identified and available post-service treatment records have been obtained. The Veteran's hearing was medically evaluated in August 2012, and December 2013, February 2015 and June 2015 addendum opinions addressed the etiology of the Veteran's hearing loss. As noted in the Introduction, a VHA opinion was also promulgated by a VA audiologist in September 2015 based upon review of the claims file. All the aforementioned VA examiners were familiar with the Veteran's medical history bead upon a review of his VA claims file. Moreover, the nature of the current disability is demonstrated by the findings noted in the treatment records and the VA medical examinations themselves. However, as detailed below, the August 2012, December 2013, February 2015, and June 2015 VA etiology opinions were inadequate, as they were either based on an inaccurate factual predicate and/or did not provide sufficient rationale. Nevertheless, as will be described in further detail below, the September 2015 VHA opinion addressed the relevant facts, issues, and provided a sufficient rationale in support of the opinions expressed therein. Therefore, the Board finds that the evidence is adequate to resolve this case. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Additionally, the Veteran was afforded the opportunity to give testimony before the undersigned in October 2013. At the hearing, the undersigned identified the issue on appeal and discussed the Veteran's service history and his current complaints. The undersigned sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate his claim. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the claim based on the current record. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of: (1) a current disability; (2) in-service incurrence of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1338-39 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"). Because the Veteran has been diagnosed with a sensorineural hearing loss, an organic disease of the nervous system which is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic diseases apply, and the claim may be established with evidence of a chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for hearing loss may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). 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 is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2015). The Court in Hensley indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the veteran's in-service exposure to loud noise and current disability. 5 Vet. App. at 155. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO (International Organization for Standardization) units. III. Factual Background & Analysis The Veteran claims that his current hearing loss is due to service. Specifically, he testified that served as a demolition specialist and tested guns. His hearing protection was cotton in the ears. He denied complaining of hearing problems while in the service. After service, he had a hearing exam and they found rock or pebbles in his ears. He stated that he sought treatment for his hearing problems after service, and all they did was give him ear drops. See, e.g., May 2009 claim; October 2013 Board Hearing Transcript. The Veteran's DD Form 214 reflects that the Veteran's Military Occupational Specialty (MOS) was "carpenter, rigger." This MOS is consistent with the Veteran's report of being a demolition specialist during active duty, and acoustic trauma is during military service is therefore conceded. 38 U.S.C.A. § 1154(a). Service treatment records (STRs) indicate that, in June 1947, the Veteran complained of his ears "stopping up." The examiner assessed the ears as normal but noted cerumen. The Veteran's ears were washed out. On April 1951 separation/reenlistment examination, clinical evaluation of the ears was normal. Whispered Voice Test was 15/15 bilaterally. On February 1954 separation/reenlistment examination, clinical evaluation of the ears was normal. Whispered Voice Test was 15/15 bilaterally. A January 1957 STR noted slight redness right ear. No infection was noted. The examiner assessed cerumen. The Veteran's ears were washed out and he was prescribed ear drops. On August 1961 retirement examination, clinical evaluation of the ears was normal. An audiogram revealed the following puretone thresholds, in decibels (with ISO units after conversion in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) / 5 (10) LEFT 5 (20) 0 (10) 0 (10) / 0 (5) In the accompanying Report of Medical History, the Veteran denied a history of ear trouble. Post-service, a January 2005 private treatment record noted that the Veteran denied any hearing dysfunction. An April 2005 private treatment record noted that the Veteran complained of deafness in both ears. The examiner assessed impacted cerumen. During August 2005 private treatment, the Veteran felt that his ears were clogged up. He had no discharge and was a little hard of hearing. The examiner assessed impacted cerumen. An October 2005 private treatment record indicated that impacted cerumen was cleared. In July 2008, the Veteran reported difficulty with hearing. In May 2009, the Veteran complained of a worsening right sided ear ache over several days. He reported his pain began in the left ear but had moved to right ear. He had problems with his ears his entire life. He reported that his doctor instructed him to use white vinegar in ears as needed for pain. In June 2009, the Veteran reported that he was suddenly not able to hear well. No tinnitus, no head injury, and no discharge from the ears was noted. A July 2009 private medical record indicates that the Veteran reported still not hearing well. In his July 2009 claim for hearing loss, the Veteran reported that he had rocks in his ears in 1942 on the island of Canton, which were removed in Oakland, California. During a December 2009 VA audiology consult, the Veteran complained that he "can't hear." He denied dizziness, ear infections, aural pressure, otalgia, trauma, otologic surgeries, and a family history of hearing loss. He reported a history of military (20 years in the Army) and recreational (hunting) noise exposure. The results of an audiogram were inconsistent and unreliable for both ears. The Veteran was scheduled to return for a reevaluation. A February 2010 VA audiogram indicated that the Veteran had mild to moderately-severe sensorineural hearing loss bilaterally. As noted above, there are a number of medical opinions of record, all of which have found that the Veteran's bilateral hearing loss is less likely as not related to service. On August 2012 VA examination, the Veteran reported that he served as a carpenter and in communication. He reported in-service noise exposure from guns and bombs, as well as post-service recreational noise exposure from woodworking and motorcycles. He denied post-service occupational noise exposure. An audiological examination showed bilateral sensorineural hearing loss. Upon review of the claims file, the examiner noted that separation and reenlistment exam revealed normal hearing acuity as ascertained by Whispered Voice Test. Retirement exam revealed normal hearing acuity with thresholds of 0 and 5 for all frequencies. Claims file contained no complaint, diagnosis, or treatment for hearing loss during military service or within 1 year of separation. Because the August 2012 examiner's opinion did not consider the Veteran's conceded in-service exposure to rock debris, the Board requested an addendum opinion. A December 2013 addendum repeated the rationale of the August 2012 VA examination report and did not address the Veteran's exposure to rock debris. Accordingly, the Board requested another addendum opinion. The Board also directed the examiner to address whether the Veteran's bilateral hearing loss may be related to service even though hearing loss was not shown at separation. A February 2015 addendum noted that that the Veteran's hearing acuity at time of retirement was normal; given thresholds of no greater than 5 dB for any one frequency in either the left or the right ear, these thresholds preclude the possibility of a threshold shift during period of service. In consideration of conceded acoustic trauma and Veteran's report of rock debris in his ears while serving as a demolition specialist, the examiner indicated that scientific evidence fails to reveal a nexus between Veteran's claimed hearing loss and military service. In consideration of available evidence, the examiner found that scientific evidence indicates that it is less likely than not that the Veteran's current hearing acuity is caused by or a result of military service. Because the February 2015 VA examiner's opinion relied, at least partially, on the Veteran's thresholds prior to conversion to ISO units, the Board requested an additional addendum opinion. A June 2015 addendum noted the documentation of having wax removed in January 1957 and April 1957, which supports the Veteran's report of rock debris in his ears during military service; however, the examiner emphasized that wax removal yields no permanent threshold shifts for hearing acuity. The examiner converted the Veteran's thresholds to ISO units, which yielded normal hearing acuity bilaterally. The examiner then found that conversion yields no impact on Veteran's active duty audiological test results, as transition from ASA to ISO standards occurred after Veteran's retirement from service; therefore, threshold shifts, if present, at time of retirement would have been compared to previous evaluations using the same standard scale. Therefore, the examiner stated that his previous opinion remained unchanged. The Board finds that the June 2015 addendum was not fully sufficient to address the claim. Although the examiner noted that he converted the thresholds to ISO units, his previous opinion found that the threshold shifts during service could have been "no more than 5 decibels," which conflicts with the above documented ISO units. Consequently, the Board obtained a VHA opinion in September 2015. The examiner opined that the Veteran's bilateral hearing loss was less likely as not incurred in, or otherwise due to service, to include conceded acoustic trauma and exposure to rock debris while serving as a demolition specialist therein. The examiner highlighted a number of facts in support of the opinion. First, the Veteran's service medical records are negative for a hearing test documenting hearing loss, and there was no evidence of hearing loss found at discharge from service. Moreover, audiologic evaluation dated August 1961 revealed hearing within normal limits bilaterally. Additionally, the Veteran on his own account denied ear trouble on Report of Medical History for retirement purposes. He was released from military service in 1961 and the first subjective mention of hearing loss was in December 2004 and the first hearing test confirming hearing loss was in February 2010, decades after service. The examiner highlighted an Institute of Medicine study stating that there is no scientific basis for delayed or late onset noise-induced hearing loss, i.e., there was there was no scientific basis for concluding that hearing loss that develops 20 or 30 years later is causally related to military service where hearing was normal upon separation. Moreover, the examiner noted that hearing loss due to a foreign body (i.e. rocks) in the ear canal results in a conductive hearing loss, which improves following removal of the debris. However, the Veteran in this case has a sensorineural hearing loss, which is not consistent with damage to the auditory system as a result of debris in the ear canal. The examiner emphasized that medical and scientific literature do not support the contention for a long delayed onset of hearing loss as a result of exposure to rock debris. Based on the foregoing, the Board concludes that entitlement to service connection for bilateral hearing loss is not warranted. In this regard, the Board finds that bilateral hearing loss was not shown in service or for many years thereafter, and there is no probative medical evidence of an opinion relating the Veteran's bilateral hearing loss to his military noise exposure or military exposure to rock debris. Regarding service connection on a presumptive basis, the post-service medical evidence of record does not demonstrate findings of hearing loss for VA purposes until February 2010, nearly 50 years after the Veteran's discharge from active duty. Therefore, both presumptive service connection and service connection based on a continuity of hearing loss symptomatology since service are precluded. 38 C.F.R. §§ 3.307, 3.309; see also Walker, supra. Regarding direct service connection, the Board first observes that the Veteran's service information supports his reports of exposure to excessive noise and rock debris during his active service. Additionally, the Veteran has a current diagnosis of hearing loss. However, the Veteran's hearing loss disability was not shown in service or for decades thereafter. The Board recognizes that the Whispered Voice Test provides a limited indication of hearing health. However, the totality of the competent medical evidence weighs against the conclusion that the Veteran's current sensorineural hearing loss had its onset in service. The Board acknowledges the Veteran's statements asserting that his hearing loss is related to military noise exposure from his active service. However, the Veteran is not competent to specify that a current hearing loss disability is related to any noise exposure during his active service, as he does not possess the requisite medical knowledge to make such a determination. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Moreover, as noted above, the medical evidence of record weighs against the Veteran's claim. The September 2015 VHA opinion is considered the most probative evidence of record with respect to whether the Veteran's bilateral hearing loss is related to military service. This opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and support by detailed rationale. Accordingly, the opinion is found to carry significant weight. In this regard, the Board acknowledges the Veteran's representative's argument that the September 2015 VHA opinion is inadequate, as it relies on the fact that the Veteran's hearing was normal at discharge. The representative further argues that the examiner should have discussed whether there was a threshold shift during service, and that "in the absence of an anchor point at entrance it requires speculation from the examiner to conclude there were no threshold changes." Contrary to the representative's argument, the September 2015 VHA opinion does not rest solely on the fact that the Veteran exhibited normal hearing at separation. The examiner discussed the lack of hearing loss during service, and lack of complaints of hearing loss until 2005 or a diagnosed hearing loss until 2011. The examiner also explained that medical literature did not support a theory of delayed-onset hearing loss resulting from acoustic trauma, and that sensorineural hearing loss does not result from foreign bodies (i.e. rock debris). Regarding the potential for a threshold shift during service, the Board finds that no additional development in this regard is necessary. There was only one audiogram during service, at separation. As there is no entrance audiogram of record, the presumption of soundness attaches, and VA must only presume that the Veteran's hearing was in the normal range of hearing (less than 20 decibels) at entrance. See Coury v. McDonald, 2015 WL 7888738, *5 (Vet. App. Dec. 3, 2015); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). As the Veteran's separation examination was within this same, normal range, there is no competent evidence of any threshold shift during service, and an examiner is not obligated to speculate in this regard. Therefore, as there is no probative evidence of a nexus between the Veteran's active service and his currently diagnosed hearing loss, the preponderance of the evidence is against the claim and it must be denied. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs