Citation Nr: 1622359 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 13-34 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to February 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT A bilateral hearing loss disability is not causally or etiologically related to service and did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VA's duty to notify was satisfied by an October 2012 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board notes that the Veteran's service treatment records (STRs) and VA treatment records have been obtained. The Veteran has been provided a VA audiological examination and VA audiological opinions have been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. The Veteran stated in November 2012 that he does not have any private medical records related to his claim and that he has not received any VA treatment related to his claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and the duties to notify and assist have been met. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. II. Service Connection Law and Regulations To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For sensorineural hearing loss, as an organic disease of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. For 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, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). III. History and Analysis The Veteran contends that he is entitled to service connection for bilateral hearing loss. The evidence of record establishes that the Veteran has a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran has reported that he was exposed to the loud noises of artillery fire during service. The Veteran's DD-214 indicates that he was a self-propelled field artillery mechanic. The Board must determine whether a nexus exists between the current bilateral hearing loss disability and the reported in-service noise exposure. January 1986 audiological testing for enlistment to service indicates that the Veteran had auditory thresholds of 5, 0, 5, 0, 5 and 20 decibels in the right ear, and auditory thresholds of 5, 0, 0, 0, 0 and 0 decibels in the left ear, at the respective frequencies of 500, 1000, 2000, 3000, 4000 and 6000 Hertz. A July 1986 service treatment record notes that the Veteran had auditory thresholds of 5, 0, 5,5, and 20 decibels in the right ear, and auditory thresholds of 5, 0, 0, 0, and 0 decibels in the left ear, at the respective frequencies of 500, 1000, 2000, 4000, and 6000 Hertz. It was noted that the Veteran had been issued ear plugs. In May 1987, the Veteran was provided another audiological examination. This examination revealed the Veteran to have auditory thresholds of 10, 5, 5, 5, 5 and 15 decibels in the right ear, and auditory thresholds of 10, 5, 0, 10, 5 and 10 decibels in the left ear, at the respective frequencies of 500, 1000, 2000, 3000, 4000 and 6000 Hertz. A document in the Veteran's STRs indicates that the Veteran did not have a discharge examination prior to his discharge from service in February 1988. The record does contain a December 1989 Army Reserve examination report. This report reveals that the Veteran had auditory thresholds of 0, 0, 0, 0, 5 and 20 decibels in the right ear, and auditory thresholds of 0, 0, 0, 0, 0 and 25 decibels in the left ear, at the respective frequencies of 500, 1000, 2000, 3000, 4000 and 6000 Hertz. At that time the Veteran checked off boxes denying ever having had hearing loss or ear trouble. The Veteran first submitted a claim for service connection for hearing loss in October 2012. He was provided a VA audiological examination in January 2013. He reported that he was a mechanic in the Army. He stated that he travelled with the field artillery. He reported that he repaired engines in the field when they were practicing and that he never used hearing protection. The Veteran noted that after service he worked in cabinetry and that he wore hearing protection when required. He reported that he hunts deer, uses power tools and rides loud recreational vehicles without using hearing protection. Audiological testing revealed that the Veteran had sensorineural hearing loss in both ears. The VA audiologist noted that she reviewed the Veteran's claims file and she opined that the Veteran's hearing loss was not caused by or a result of military service. She noted that the Veteran' s hearing tested within normal limits at entrance to service. She stated that a review of the Veteran' s audiograms from the STRs showed no significant threshold shifts (500-4000 Hz) in either ear on separation showing that his in-service noise exposure did not have a detrimental effect on his hearing sensitivity. The Board notes that it appears that the VA audiologist made this opinion thinking that the December 1989 Reserves examination report findings were from the Veteran's discharge from active duty. Regardless the VA audiologist's opinion remains valid as this shows that even a number of months after discharge from service, the Veteran had still not developed hearing loss. In November 2013 another VA audiologist reviewed the Veteran's claims file. She cited to medical literature and opined that given the Veteran's normal hearing bilaterally on discharge, and no evidence of significant shift in thresholds from induction to discharge, any current or future hearing impairment is not caused by or a result of military noise exposure. The Veteran submitted a November 2009 article from the Journal of Neuroscience. This article suggested that noise-induced damage to the ear may result in delayed hearing loss. In May 2014 a third VA audiologist was requested to review the Veteran's records and provide an opinion regarding the Veteran's hearing loss. The VA audiologist reviewed the journal article submitted by the Veteran. She noted that at the present time the VA bases its opinions on those from the Institute of Medicine which the previous VA audiologist, quoted quite accurately. She applauded the Veteran for presenting the journal article, but her opinion was based on the probability, not the possibility, of a causal relationship between noise and damage to the auditory system and the journal article did not invalidate the Institute of Medicine's current position, or that of the VA, or that of herself (the VA audiologist). The Board notes that the Veteran had normal hearing when examined for the Reserves some months after discharge from service and at that time the Veteran denied ever having hearing loss. The Board further notes that although the Veteran asserts that his current hearing loss is a result of service, he has never asserted that he has had hearing loss continually since service. Consequently service connection for bilateral hearing loss cannot be established based on continuity of symptomatology. The Board has reviewed the journal article submitted by the Veteran regarding how loud noise exposure can possibly cause delayed hearing loss. However, this document is of little probative value as it does not specifically discuss the Veteran. Furthermore, the Reserves hearing evaluation some months after discharge from service shows that the Veteran did not have hearing loss at that time due to noise exposure during service, and three VA audiologists have indicated that the Veteran's exposure to noise during service did not result in the Veteran developing hearing loss at a later time. The Board has considered the Veteran's opinion that he is entitled to service connection for hearing loss because the December 1989 Army Reserve examination report showed that his hearing underwent a decrease of 25 decibels at 6000 Hertz in the left ear as compared to his January 1986 enlistment examination. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran has current bilateral hearing loss that is related to noise exposure during service, is a complex medical issue and it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran pointed out that a prior Board decision granted a combat Veteran service connection for hearing loss based on a showing that the Veteran had hearing loss at 6000 Hertz during service. The Board must points out that prior Board decisions have no precedential value and it is not probative. See 38 C.F.R. § 20.1303 (2015). On his May 2013 notice of disagreement (NOD) the Veteran cited to Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). He asserted that in Dambach, the Federal Circuit stated that where there was a significant downward shift in hearing acuity (10db) during service, with a later degradation to a point where hearing in one or both ears is outside of normal limits, there is evidence of acoustical trauma in service, no evidence of intercurrent acoustical trauma, and a medical opinion linking the loss to the acoustical trauma in service, service connection can be granted for hearing loss. The Board has reviewed Dambach and notes that it does not mention hearing loss. Mr. Dambach was seeking service connection for a heart condition. Consequently, Dambach provides no support for the Veteran's claim. In this case the most probative evidence of record is the opinions of the three audiologists. The first VA audiologist examined the Veteran, all three audiologists reviewed the Veteran's medical history, and the third VA audiologist reviewed the journal article submitted by the Veteran. Based on this review, these audiologists opined that the Veteran's current hearing loss is unrelated to the Veteran's military noise exposure. All of the VA audiologists provided a thorough rationale for their opinions. As shown above, the greater weight of the evidence, and the most probative evidence, demonstrates that the Veteran's bilateral hearing loss is unrelated to service. There are medical opinions against his claim, and there are no medical opinions in support of his claim. As the preponderance of the evidence is against the claim, service connection for bilateral hearing loss is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). For these reasons, the claim is denied. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs