Citation Nr: 1608315	
Decision Date: 03/02/16    Archive Date: 03/09/16

DOCKET NO.  11-12 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. L. Krasinski, Counsel


INTRODUCTION

The Veteran served on active duty from August 1954 to June 1958.  

This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO).

In an April 2011 VA Form 9, the Veteran requested a hearing before the Board.  A Board videoconference hearing was scheduled for February 23, 2016, with the January 20, 2016 notice letter for the Board hearing being sent to the Veteran at a St. Charles, Illinois address.  The January 20, 2016 notice letter was returned to VA as "temporarily away, return to sender."  The Veteran did not appear for the scheduled February 2016 hearing. 

The Board acknowledges the fact that the notice of the hearing was returned.  However, the address that was used was the address of record for the Veteran.  The Veteran did not inform VA of a new mailing address.  It is the Veteran's responsibility to keep the VA apprised of his whereabouts.  See Hyson v. Brown, 5 Vet. App. 262, 264 (1993).  As such, the Veteran's hearing request is considered to have been withdrawn.  See 38 C.F.R. § 20.704 (2015).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran sustained noise exposure in service as a radio operator in the U.S. Navy.  

2.  The Veteran did not have chronic or continuous hearing loss symptoms in active service and since separation from active service, bilateral hearing loss was first diagnosed many years after service separation, and it is not as likely as not that the current bilateral hearing loss disability is related to the Veteran's noise exposure during his period of active service or other injury or event in active service.    


CONCLUSION OF LAW

The criteria for the establishment of service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

1.  Duty to Notify and Duty to Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA has met its duty to notify for the claim.  Neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  Thus, adjudication of the claim at this time is warranted. 

The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied.  Here, the evidence shows that the Veteran's service treatment records are associated with the file.  The Veteran submitted records of post service audiometric testing and evaluation in support of his claim.  The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim.  In July 2009, the Veteran informed VA that he had no additional information or evidence to submit in support of his claim.  

VA provided an audiometric examination in February 2010 and an opinion was obtained that addresses the nature and etiology of the Veteran's bilateral hearing loss.  The examination is adequate because a medical professional, a licensed audiologist, performed the examination and issued a medical opinion based on review of claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the Veteran nor his representative has challenged the adequacy of the examinations.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed").

The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 

2.  Service Connection Legal Authority

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

In this case, a disease of the nervous system, namely sensorineural hearing loss, are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  When a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b). 

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from 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.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

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 puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz).  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 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 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.


3.  Analysis: Service Connection for Bilateral Hearing Loss

The Veteran contends that he has bilateral hearing loss due to noise exposure when he was in service.  Service records show that the Veteran served with the Navy.  The Veteran reported that his military occupation was radio operator aboard a ship.  He stated that he used headsets on both ears, he received and transmitted information for 8 to 12 hours a day, and he listened to Morse code.  He stated that occasionally, very loud tones came over the headsets.  See the February 2010 VA examination report and the June 2009 application for compensation.    

The Veteran's noise exposure in service is conceded by the Board.  The Veteran is competent to describe being exposed to noise.  See Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  The Veteran's lay statements as to the noise exposure in service are found to be credible as they have been consistent and are confirmed by the circumstances of his service.  For this reason, in-service noise exposure to both ears is established.  However, military noise exposure alone is not considered to be a disability; rather, the noise exposure must result in a hearing loss disability.  

The Board finds that the weight of the evidence demonstrates that the Veteran did not have bilateral hearing loss in service.  Service treatment records are negative for any complaints of, diagnoses of, or treatment for either hearing loss or any symptom that might be consistent with hearing loss.  Audiometric evaluation was not conducted in active service.  Whispered Voice and Spoken Voice testing was conducted and the results were 15/15 on enlistment and separation examinations.  The service treatment records do not documents any report of hearing loss symptoms.  The Veteran separated from active service in June 1958.  

Following service, the evidence of record show that the Veteran worked as an air traffic controller for 34 years and for the last 15 years, he was in management.  The Veteran reported that for the first 19 years as an air traffic controller, he wore a noise cancelling headset.  The Veteran denied having any recreational noise exposure.  See the February 2010 VA examination report.  

The evidence demonstrates that the bilateral sensorineural hearing loss for VA purposes was first shown upon audiometric examination in July 1974.  On authorized audiological evaluation in July 1974, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
45
45
60
LEFT
15
20
40
55
65

The criteria set forth in § 3.385 were met.  The July 1974 evaluation report indicates that the Veteran had no change in high frequency hearing loss and Whispered Voice was okay.  The Veteran denied having difficulty hearing.  Private audiometric evaluations in July 1975, October 1987, and July 1994 show that the Veteran continued to have sensorineural hearing loss disability for VA purposes.  The February 2010 VA audiometric evaluation shows that the Veteran continues to have current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385.  

However, the preponderance of the evidence establishes that the current bilateral hearing loss is not due to or related to service, to include the noise exposure in service.  As noted, the service treatment records do not document complaints, treatment or diagnosis of bilateral hearing loss.  

There is no medical evidence showing a diagnosis of bilateral sensorineural hearing loss within one year from service separation in June 1958.  The Veteran has not identified or submitted any medical evidence showing a diagnosis of sensorineural hearing loss within one year from service separation.  Thus, service connection for bilateral hearing loss on a presumptive basis under 38 C.F.R. § 3.307(a) is not warranted. 

The Board has considered the provisions of 38 C.F.R. § 3.303(b).  The weight of the evidence shows that there were no chronic symptoms of bilateral hearing loss during service or continuous symptoms of hearing loss since service.  The service treatment records do not document hearing loss symptoms or complaints.  The Veteran first alleged hearing loss in June 2009 when he filed his claim for service connection for hearing loss; he made a general assertion in the application that his hearing loss was related to the noise exposure in active service.  The July 1974 audiometric exam is the first clinical evidence of sensorineural hearing loss as defined by 38 C.F.R. § 3.385.  This lengthy period without complaints or treatment weighs against the finding that the bilateral hearing loss has existed since service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim).  

The Veteran has not provided any lay evidence which documents continuous bilateral hearing loss symptoms since service; he has only asserted that the current bilateral hearing loss is related to service.  He has not provided any medical evidence documenting continuous symptoms since service.  At the February 2010 VA audiometric examination, the Veteran reported that he mostly noticed the hearing loss in the past 15 years or so after retirement.  Thus, service connection for bilateral hearing loss on a presumptive basis under 38 C.F.R. § 3.303(b) is not warranted. 

The Board finds that the weight of the competent and credible evidence establishes that the current bilateral hearing loss is not etiologically related to the Veteran's active service.  Following the examination in February 2010, the VA audiologist opined that it was less likely than not that the current bilateral hearing loss was caused by or the result of noise exposure in service.  The basis for the audiologist's opinion was that the Veteran reported that the difficulty hearing began after retirement which was more than 30 years after service, the Veteran had minimal noise exposure while in service, and the Veteran had annual occupational audiograms (post service) which indicated a progression of hearing loss.  

The Board finds the VA medical opinion dated in February 2010 to be probative.  The VA audiologist reviewed the claims file including the post-service audiometric examination reports and the service treatment records.  The VA audiologist considered the Veteran's lay statements and report of symptoms, and provided a rationale for the medical conclusions.  The Board finds that the opinion is based upon sufficient facts and data and this opinion is probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  

The Veteran himself has made a general assertion that his bilateral hearing loss is related to noise exposure in service.  However, the Board cannot rely on the Veteran's general assertion as to medical nexus to service because he is not shown to possess the type of medical expertise that would be necessary to opine regarding the etiology of hearing loss.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  The question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address.  It is not shown that the Veteran has the medical expertise to provide a medical opinion as to whether his current hearing loss is related to the noise exposure in service.  

In light of the above, the Board finds that the preponderance of the evidence is against a finding that the bilateral sensorineural hearing loss is related to service.  As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  The claim for service connection for bilateral sensorineural hearing loss is denied.


ORDER

Service connection for bilateral hearing loss is denied.  


____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs