Citation Nr: 1625879 Decision Date: 06/28/16 Archive Date: 07/11/16 DOCKET NO. 11-28 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota. In June 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in June 2014 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the directives of its remand. FINDINGS OF FACT 1. The Veteran had normal hearing upon separation from service in 1970. 2. The earliest clinical evidence of hearing loss is approximately four decades after separation from service. 3. The most probative evidence of record is against a finding that the Veteran's hearing loss is causally related to, or aggravated by, active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Notice was provided in January 2011. The Veteran's representative has stated that the September 2011 VA opinion by Dr. B. is inadequate because she a "general practitioner" and 38 C.F.R. § 4.85(a) requires that an examination be conducted by a state-licensed audiologist. The March 2011 examination was performed by a state licensed audiologist (M.M.), as required by 38 C.F.R. § 4.85(a); M.M also provided an opinion. The Board notes that Dr. Blaylark is a doctor who is board certified in occupational medicine; thus, she would have experience and/or training in hearing loss, and is qualified to provide an opinion. 38 C.F.R. § 4.85(a) does not require that a clinical opinion be provided by an audiologist, but rather requires that the actual testing be provided by an audiologist, as it was in the Veteran's case. Moreover, the July 2014 examiner and opinion provider, K.N., is also an audiologist. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic disease of the nervous system, such as sensorineural hearing loss, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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. Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran avers that he has bilateral hearing loss disability as a result of active service, to include exposure to weapon firing. The Board finds, for the reasons noted below, that service connection for bilateral hearing loss disability is not warranted. The Veteran's DD 214 reflects that his primary specialty in service was in field artillery and that he had approximately one year of service in Vietnam from 1968 to 1969. The Board finds that the Veteran was exposed to noise from weapons. The Veteran's April 1970 report of medical examination for separation purposes reflects that his hearing acuity upon audiology testing was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 Thus, the Veteran had normal hearing upon separation from service. Not only do the audiometric finding reflect that the Veteran had normal hearing but the Veteran himself, in an April 1970 report of medical history for separation purposes, specifically denied hearing loss. Notable, he did report that he had piles or rectal disease and was a bed wetter. The Board finds if the Veteran had hearing loss in service, it would have been reasonable for him to have reported it when he reported his other disabilities, rather than deny it. In addition, there are no STRs which reflect complaints of hearing loss. There are no clinical records or other evidence in the four decades after separation from service which reflect that the Veteran had hearing loss. The earliest contention of hearing loss is in 2010, the year in which the Veteran filed a claim for service connection. A March 2011 VA examination report reflects that the Veteran reported the following noise exposure: prior to service (tractors, farm equipment, farm animals for three to four years without use of ear protection); in service (from the firing of weapons, including howitzers and 8 inch guns without noise exposure); post service (machinery noise for 12 years in a metal company and other factory noises for 26 years with ear protection since the 1980s; power tools from remodeling homes without ear protection; and other activities involving lawn mowers, snow plows, power boats, single aircraft without ear protection, shop vacuum and minimal attendance at concerts.) Upon examination, his hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 50 50 LEFT 15 10 15 45 45 His word recognition scores were too unreliable to score bilaterally. It was noted that his speech discrimination responses were unreliable and did not match his behavioral responses nor are they consistent with the pattern or degree of his hearing loss. The examiner opined that it is less likely as not that the Veteran's current hearing loss disability is due to noise exposure while in service. The examiner's opinion was based on comparison of the Veteran's pre-induction audiology results, his audiology results upon separation, and the lack of decrease in hearing thresholds. The examiner found that there is no nexus between his current hearing loss and service, and that his current hearing loss is more likely due to post service noise exposure. A September 2011 VA opinion addendum includes a discussion of medical literature which is noted as following: The evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effect of a given noise exposure on pure tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days . . . . the understanding of the mechanism and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely . . . The conclusion from review of the research in this area is that individuals with previous noise-induced hearing loss are neither more nor less susceptible to subsequent noise-induces hearing loss than individuals without such pre-existing hearing loss. The examiner found, based on a review of the claims file and medical literature that "if hearing is normal upon discharge, there is no evidence of hearing damage due to military noise exposure. Any worsening of hearing from the time of discharge to current is due to noise exposure between the times of discharge to current." A July 2014 VA examination report showed hearing loss disability and speech recognition scores of 96 percent for the left ear and 92 percent for the right ear. The examiner again found that it is less likely as not that the Veteran's current hearing loss is due to service. The examiner noted that the Veteran's STRs do not show a significant threshold shift in either ear between entrance and separation which shows that his in service noise exposure did not have a detrimental effect on his hearing sensitivity. With regard to delayed onset hearing loss, the examiner noted that the Institute of Medicine (2006) found no scientific/medical basis on which to conclude that delayed onset of hearing loss exists based on our understanding of auditory physiology. The examiner considered the Veteran's in-service noise exposure to mortars and other weapons, and his post service occupation which was reported as corporate work, management, warehouses using hearing protection, and as a safety work director. He denied use of snow blower or hunting/target practice. In an addendum, the clinician acknowledged the literature of evidence as well as the private nexus opinion, discussed below, but noted that the type of noise-induced hearing loss caused by weapons firing or proximity to explosives discussed caused hearing loss which was "usually immediate and permanent" which was not the case with the Veteran's hearing which was normal upon separation. The claims file includes a July 2011 private audiology record from Dr. O. F. of Paparella Ear Head & Neck Institute. The record reflects that the Veteran reported that he after leaving the military, he worked in a warehouse with minimal noise exposure and good hearing protection for a few years and then worked in the office and was not exposed to loud noise. The private clinician stated as follows: Based on my review of [the Veteran's] service and medical records my conclusion is that military exposure was likely the cause of his current [bilateral] sensorineural hearing loss. The Board finds that the opinion has little probative value. The private clinician stated that he reviewed the Veteran's records; however, he fails to provide any rationale as to how the Veteran could have normal hearing upon separation and now have current hearing loss due to service. While the examiner noted that the Veteran "worked in a warehouse with minimal noise exposure and good hearing protection for a few years and then worked in an office," the Board finds that this is not an accurate picture of the Veteran's 12 years or more of working around machinery and not having ear protection for 10 years or more after separation from service, and does not consider his subsequent work as a snow plow operator, or his recreational activities. The claims file also includes a 2013 private audiology record which notes hearing loss, a Decibel Loudness Comparison chart, information on military noise environments, information on assessment of impairment and compensation for occupational hearing loss. The Veteran contends that he discussed all his noise exposure with his private clinician and that the clinician advised that his military noise exposure was much more intense and far outweighed his civilian exposure. (See October 2011 representative statement and VA Form 9.) The Veteran testified at the 2013 Board hearing as to his exposure to artillery noise, as well as noise from his M16, and that he had minimal noise exposure post service. The Veteran further testified that he did not have a hearing test when he exited service because he would have remembered that as his hearing has "always" been some kind of problem. He testified that "as far back as I remember basically, you know, I've had some kind of hearing problem." While a Veteran is generally competent to report what he has been told by a clinician, the "connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Importantly, even assuming that the Veteran informed the civilian clinician of his post service noise exposure, the civilian clinician failed to provide any adequate rationale as to how the Veteran's current hearing loss is due to service when the Veteran had normal hearing upon testing at separation and denied any hearing loss at that time. The Veteran is competent to attest to factual matters of which he has first-hand knowledge. To this extent, the Board finds that the Veteran is competent to report that he has current difficulty with hearing. However, the Veteran has not been shown to have the experience, education, or training necessary to render a competent opinion as to etiology given the facts in his situation. The Board also finds that the STRs made contemporaneous to service are more probative than the Veteran's statements made many years later and for compensation purposes. The STRs reflect that the Veteran did undergo a hearing examination upon separation. In addition, the Veteran himself denied hearing loss upon separation. Based on the STRs and the lack of clinical records or complaints in the decades following separation from service, the Board finds that the most probative evidence is against a finding of continuity of symptoms since service. The Veteran's accredited representative has noted that the Veteran's May 1967 entrance (pre-induction) examination does not indicate whether ASA or ISO-ANSI standards were used. The Board notes that the 1967 report reflects negative threshold levels, which is usually indicative of ASA standards. The Board also notes that VA policy is that Service department audiometer test results prior to October 31, 1967 are assumed to have been reported in ASA units, rather than the current ISO units, unless otherwise noted. The May 1967 results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 -10 -- 0 LEFT 10 0 0 -- 0 Assuming that they were reported in ASA standards, the Board converts them by adding, to the ASA units, as follows: 15 decibels to 250 Hz., 15 decibels to 500Hz, 10 decibels to 1000 Hz, 10 decibels to 2000 Hz, 10 decibels to 3000 Hz., and 5 decibels to 4000 Hz. Even with conversion, the Veteran would still normal hearing at all frequencies except in the left ear at 500 Hz, which would be indicative of abnormal hearing, but not of a hearing loss disability. Regardless, the Veteran had normal hearing at that level, as in all levels, upon separation. Thus, there was not increase in severity of a pre-existing disability during service. Second, the representative has cited to the Lange Handbook of Occupational & Environmental Medicine that from 1964 to 1969 the ISO standard was used in audiograms. However, the Board does not follow this timeframe. As noted above, VA policy is that Service department audiometer test results prior to October 31, 1967 are assumed to have been reported in ASA units, rather than the current ISO units, unless otherwise noted. Regardless, even if the Veteran's hearing acuity was described in ISO units at entrance, and even if he had some type of threshold shift, no clinician has found, based on the STRS, that he had abnormal hearing upon separation. Third, the Veteran's accredited representative has argued that the Veteran's audiology scores are "likely unreliable, as it is unlikely that anyone would achieve a perfect score on audiometric testing (especially when, as in this case, the veteran did not have a perfect score at enlistment, and was subjected, as VA conceded, to significant acoustic trauma in the interval.)" The representative's allegation that the separation examination results are likely unreliable is speculative and lacks probative value. The Board finds that the results are reliable and that they are supported by the Veteran's denial of hearing loss on separation. The representative states that the "hypothesis that audiometric testing wasn't conducted at discharge would be consistent with discharge physical during the Vietnam era, which tended to be hasty affairs meant to out-process a large volume of troops as quickly as possible." This again is speculative and does not change the fact that the Veteran denied hearing loss upon discharge. The lack of a second audiometric test card in the claims file is also not probative that testing was not performed. The report made contemporaneous to service reflects that testing was performed. Fourth, the representative contends that neither examiner discussed the "veteran's combat, or seemed aware of special allowances under VA law for combat veterans." The Board finds that this allegation is without merit. The examination report clearly notes that the Veteran was in the field artillery while in Vietnam for one year with exposure to firing 175 Howitzers and 8 inch guns for ground support. No one disputes that he was exposed to noise in Vietnam; thus, a lack of STRS noting complaints of noise exposure in Vietnam does not prejudice the Veteran. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. The phrase "engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). When the "combat presumption" has been triggered, a medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between current disability and his military service. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but ease the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. The Board acknowledges that exposure to loud noise is consistent with the Veteran's service; however, the Board finds that a chronic hearing loss disability did not manifest in service, as evidenced by the audiometry results after service in Vietnam (e.g April 1970). When considering the record as a whole, service connection is not warranted. The Board has considered all of the Veteran's contentions, as well as the case law cited by the representative, to include Hensley v. Brown, 5 Vet. App. 155 (1993), Dambach v. Gober 233 F.3d 1376 (Fed. Cir. 2000), Peters v. Brown, 6 Vet. App. 540 (1993), and Ledford v. Derwinski, 3 Vet. App. 87 (1002). The Board acknowledges that a hearing loss disability for VA purposes need not be shown in service for service connection to be warranted at a later date. Nonetheless, the Veteran did not even have abnormal hearing upon separation, he had no STRs noting complaining of hearing loss to include the seven months after his return from Vietnam, he denied hearing loss upon separation, the earliest clinical evidence of hearing loss is four decades after separation from service, he had post service noise exposure, and the most probative clinical opinions are against a finding that service connection is warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss disability is denied. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs