Citation Nr: 1626005	
Decision Date: 06/28/16    Archive Date: 07/11/16

DOCKET NO.  12-25 717	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by: Tennessee Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Cramp, Counsel

INTRODUCTION

The appellant is a veteran (the Veteran) who had active duty service from July 1973 to July 1977 and from January 1980 to January 1982.  

This appeal comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the RO in Nashville, Tennessee.

In August 2014, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board.  See 38 C.F.R. § 20.700(e) (2015).  A transcript of the hearing is associated with the claims file.

In December 2014, the Board remanded the issues of entitlement to service connection for bilateral hearing loss and tinnitus.  In a January 2016 rating decision, the RO granted service connection for tinnitus, resolving the appeal as to that issue.  The Board also denied service connection for vertigo.  The Board's decision with respect to that claim is final.  See 38 C.F.R. § 20.1100 (2015). 


FINDING OF FACT

The Veteran had a pre-existing hearing loss disability for VA purposes at examination, acceptance, and enrollment for service, which was not worsened beyond natural progress by service.  


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by service; an organic disease of the nervous system is not presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1153, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.385 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs.  38 U.S.C.A. §§ 1110, 1131.  

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

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 threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  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.

For specific "chronic" diseases, there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service.  This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946.  In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Where one of the enumerated chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b).

Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b).  Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Organic diseases of the nervous system are included among the enumerated chronic diseases and these may include sensorineural hearing loss.  For sensorineural hearing loss as a bilateral condition to have become manifest to a degree of 10 percent, there must be a diagnosis that conforms to 38 C.F.R. § 3.385, and such combination of auditory threshold measurements and speech recognition scores (or auditory threshold measurements alone in the case of an exceptional pattern) as would produce a 10 percent rating under Table VII of 38 C.F.R. § 4.85 (2015).  

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). 38 C.F.R. § 3.304(b) states likewise, but also states "[o]nly such conditions as are recorded in examination reports are to be considered as noted."

When examined, accepted, and enrolled for service in February 1973, the Veteran was found to have mild bilateral hearing loss based on the following audiological readings: 




HERTZ



500
1000
2000
3000
4000
RIGHT
45
15
15
30
35
LEFT
30
15
20
30
35

The Veteran was assigned a physical profile (PULHES) value of H-2.  PULHES is the six categories into which a physical profile is divided.  The H stands for hearing and ears.  This factor concerns auditory acuity and disease and defects of the ear.  The number 2 indicates that an individual possesses some medical condition or physical defect that may require some activity limitations.  See 9-3(c)(1) Army Regulation 40-501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).

As a pre-existing hearing loss defect was noted at examination, acceptance, and enrollment for service, the presumption of soundness does not attach.  

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. §§ 3.304, 3.306(b) (2015).

A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).

Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder became worse during service but improved due to in-service treatment to the point that it was no more disabling than it was at entrance into service, there is no presumption of aggravation.  Verdon v. Brown, 8 Vet. App. 529 (1996).

Service treatment records reveal the Veteran's August 1974 complaint of acute hearing loss in both ears after working in a hazardous noise area.  On examination, there was slight serous otitis noted bilaterally.  

Puretone thresholds on August 6, 1974, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
25
25
30
35
LEFT
40
35
20
40
35

On August 15, 1974, puretone threshold were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
50
50
45
45
45
LEFT
50
35
30
35
45

A September 4, 1974, clinical note reveals the Veteran's report of a history of chronic ear infections as a child with three mastoid operations.  It was noted that the Veteran had a number of guns and worked in a noisy environment.  A functioning myringostapediopexy on the right side was noted, as well as functionally normal ear drums and middle ears.  

A September 5, 1974, clinical note reveals the Veteran was still complaining of hearing loss.  He reported three mastoid operations and many guns used as a child for hunting.  He was now working in a noisy environment.  The diagnosis was bilateral hearing loss, "probably secondary to otosclerosis and acoustic?"  

Audiometric testing on July 15, 1976, revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
40
45
45
LEFT
35
25
30
30
35

A December 15, 1976, clinical note reveals old scars bilaterally on tympanic membranes "myringotomy?"  The diagnosis was otitis media with history of being hit on the head with a baseball bat in the early part of 1974.  

Audiometric testing conducted at the end of the Veteran's first period of service, on July 14, 1977, revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
40
40
45
55
LEFT
35
30
30
40
40

Audiometric testing conducted on May 21, 1978, revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
25
35
40
LEFT
40
25
30
35
40

At examination, acceptance, and enrollment in the Veteran's second period of service, on January 9, 1980, the following puretone thresholds were recorded:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
15
15
25
35
LEFT
20
15
10
25
35

Clinical notes on A June 17, 1980, June 22, 1981, June 25, 1989, and July 1, 1981 reveal findings of otitis externa.  

At service separation on January 7, 1982, the following puretone thresholds were recorded:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
20
35
45
LEFT
25
15
10
30
35

After service, on July 22, 1983, the following puretone thresholds were recorded:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
10
15
25
20
LEFT
35
15
15
30
30

The Veteran filed his claim of entitlement to service connection for bilateral hearing loss in October 2010.  In developing the claim, the RO obtained a VA examination and medical opinion.  A February 8, 2011, examination report includes the findings of a VA audiologist that the service treatment records show a well-documented history of middle ear dysfunction.  The Veteran reported three mastoidectomies prior to entering the service.  There were several documentations of ongoing ear infections and sinus issues.  The Veteran reported that, four years prior, he saw a physician who told him his left ear tympanic membrane was almost totally obliterated.  He reported having a graft to patch the damage.  The following puretone thresholds were recorded at the examination:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
45
50
65
60
LEFT
85
85
80
90
100

Speech recognition scores were 94 percent in the right ear and 92 percent in the left ear.  The audiologist recommended evaluation by a medical physician specializing in diseases of the ear (otolaryngologist).  

A May 2011 medical opinion reveals that the Veteran's bilateral hearing loss is less likely as not (less than 50/50 probability) caused by or a result of noise exposure while in service.  The rationale was that the Veteran had a history of ear surgery and had audiologic findings consistent with left ear otosclerosis causing a mixed hearing loss.  The right ear had a moderate sensorineural hearing loss which may be due to previous surgery and may have some component that is due to noise exposure, but this is less likely, as the Veteran had a short amount of time that he was exposed and he wore hearing protection.  

Another opinion was obtained in December 2015.  A review of the claims file and service records revealed the Veteran to have pre-existing hearing loss at the entrance audiology examination with no permanent, significant, threshold shifts noted over a year after separation (examination dated July 22, 1983).  The examiner noted that temporary threshold shifts were noted at separation in the right ear, which resolved to thresholds within normal limits by 1983.  The examiner noted that the audiogram is the objective standard for noise injury, and because the Veteran's hearing loss over a year after separation revealed no permanent, significant threshold shifts having occurred during active duty service, there was no evidence the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity.  Therefore, the Veteran's current hearing loss was deemed less likely as not (less than 50/50 probability) caused, or permanently aggravated by or as a result of military service.

After a review of all of the evidence, the Board finds that a preponderance of the evidence is against any permanent worsening of the Veteran's pre-existing hearing loss due to his service.  Consistent with the findings expressed in the December 2015 opinion, the evidence pertinent to service does not substantiate a permanent worsening of the Veteran's pre-existing hearing loss during service or within one year of service separation.  Pertinent to the presumption of service connection for chronic organic disease of the nervous system, at no time pertinent to service or within one year of service separation did the audiometric readings support a rating of 10 percent or more.  The average of the readings at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz taken service separation in January 1982 and in July 1983, when applied to Table VIA and then to Table VII do not substantiate a rating of 10 percent or more.  

There is no medical opinion that purports to relate current hearing loss or worsening of hearing loss to service.  The Veteran's lay assertions are the only evidence in favor of such a relationship.  Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation.  See Barr, 21 Vet. App. at 308-09.  A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional.  However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation.  Lay statements are not competent evidence regarding diagnosis or etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). 

The Board finds that establishing a worsening of hearing loss is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377).  Determining the severity of hearing loss, and the presence and extent of any worsening of hearing loss, are inherently dependent on measures of auditory acuity which, under VA law, must be conducted by a state-licensed audiologist.  38 C.F.R. § 4.85(a).  These are not matters which are capable of lay observation.  While the Veteran is competent to describe the effect of hearing loss on his activities of daily life, he is not competent to establish an actual worsening of auditory acuity.  Accordingly, the Veteran's lay statements are not competent evidence of an in-service worsening of his pre-existing hearing loss.  

The Board acknowledges the Veteran's testimony that he was exposed to loud noises during his service on the flight deck of an aircraft carrier.  However, the crucial question to be resolved in determining entitlement to service connection is whether the hearing loss which pre-existed service was permanently worsened beyond natural progress as a result of such noise exposure, or as a result of other injury or disease in service.  As discussed above, this is an inherently medical question on which the medical opinion evidence provides highly probative evidence.  

The Board also acknowledges the Veteran's argument that at least some of the auditory thresholds at service separation were higher or worse than at service entrance.  However, as the record clearly reveals, the auditory thresholds can vary from examination to examination, and they are not the sole determinative factor regarding the existence of, or worsening of, a hearing loss disability.  This determination requires medical knowledge and understanding of the manifestations and progression of hearing loss.  In this case, there is no conflict in the medical opinion evidence, which is decidedly against causation or aggravation of a hearing loss disability by service.  

As the only competent evidence regarding the essential element of a permanent worsening of pre-existing hearing loss by service finds that there is no such worsening, the Board finds that a preponderance of the evidence is against this element, and therefore concludes that service connection for hearing loss or aggravation of hearing loss is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Duties to Notify and Assist

VA's duty to notify was satisfied by a letter in December 2010.  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 RO has obtained pertinent medical records including the service treatment records and VA outpatient treatment reports.  The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained.  

The RO has also obtained a thorough medical examination regarding the claim, as well as a medical opinion.  The Veteran has made no specific allegations as to the inadequacy of any opinion.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  

When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2015).  The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.  

Here, during the Board hearing, the Veteran was informed as to the basis for the RO's denial of his claim, and he was informed of the information and evidence necessary to substantiate the claim.  Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103.

As noted above, this appeal involves a remand by the Board for additional evidentiary development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

In this case, the RO substantially complied with the Board's remand instructions by obtaining a supplemental opinion as to whether hearing loss was caused or worsened by service.  The examiner reviewed the pertinent clinical records and provided an opinion addressing causation and aggravation as requested.  


ORDER

Service connection for bilateral hearing loss is denied



____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs