Citation Nr: 1630763	
Decision Date: 08/02/16    Archive Date: 08/11/16

DOCKET NO.  08-06 581A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from April 1970 to February 1972.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The appeal was certified to the Board by the RO in Nashville, Tennessee.  

In December 2011 and December 2013, the Board remanded the appeal for further development.  

In January 2013, VA granted entitlement to service connection for anxiety and depressive disorders, not otherwise specified, and assigned a 30 percent rating.  The Veteran filed a timely notice of disagreement in April 2013.  In March 2015, VA issued a statement of the case.  Later that month the Veteran filed a timely VA Form 9 and indicated he wanted a videoconference hearing.  In May 2015, the issue was certified for appeal.  Traditionally, under these facts, the claim for an increased rating for an anxiety disorder would be remanded for the RO to schedule a hearing.  Nevertheless, senior management of Board has directed the undersigned and his peers not to remand this type of case.  Notwithstanding that directive the Veteran is respectfully advised that he should follow up with the RO to ensure that action is taken on his March 2015 hearing request, and the RO is reminded that they are to schedule the requested hearing in accordance with appropriate procedures.  

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed.  


FINDINGS OF FACT

1.  The Veteran does not have a right ear hearing loss disability for VA purposes.

2.  A left ear hearing loss disability for VA purposes was not shown during service or for many years thereafter and the preponderance of the evidence is against finding that current disability is related to active service or events therein, to include noise exposure.  

CONCLUSION OF LAW

A bilateral hearing loss was not incurred during active service nor may a sensorineural hearing loss be presumed to have been so incurred.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2015).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Analysis

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

With chronic disease shown as such in service 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.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for a present disability the Veteran must 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 during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

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 will be presumed for certain chronic diseases, including sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from active duty.  38 C.F.R. §§ 3.307, 3.309(a).

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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.

Service treatment records show that on report of medical history completed at pre-induction in August 1969, the Veteran reported running ears and hearing loss.  The examining physician noted "runny ears OK now".  On corresponding physical examination, the ears were reported as normal.  Audiometric testing showed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
5
X
5
LEFT
10
25
0
X
10

A May 1971 record shows the Veteran had been alerted for Vietnam and wanted his hearing checked.  He was able to hear conversational voice and was told that any hearing loss would probably be high frequency.  Further evaluation was not indicated at that time.  

On examination for separation in February 1972, the Veteran's ears were again reported as normal on clinical evaluation.  Audiometric testing was not conducted, but hearing was reported as 15/15 on whispered voice testing bilaterally.  

The Veteran underwent a VA examination in April 1972 in connection with an unrelated claim.  At that time, no hearing loss was noted.  

A January 2000 private record documents the Veteran's report of some chronic decreased left ear hearing.  The assessment was cerumen impaction.  An August 2004 private record notes some hearing loss for the prior week or two and he thought he might have a cold.  Assessment was cerumen impaction.  

The Veteran underwent a VA examination in May 2008.  He reported noticing hearing problems after being in the service.  While in service the appellant reportedly worked in construction and was exposed to power equipment such as jack hammers.  He also reported exposure to helicopter and bombing noises without hearing protection.  Post-service he reported working as an auto mechanic and in construction putting up sheet rock, but denied occupational exposure.  He reported riding motorcycles as his only recreational noise exposure without hearing protection.  Audiometric testing showed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
15
15
LEFT
30
40
20
15
20

Speech recognition scores using the Maryland CNC word list were 96 percent in the right ear and 94 percent in the left ear.  Diagnosis was normal hearing in the right ear with a mild loss at 6000 Hertz and 8000 Hertz.  A mild conductive loss at 500 Hertz and 1000 Hertz in the left ear with a mild loss also noted at 6000 Hertz and 8000 Hertz.  The examiner stated the right ear hearing loss was not disabling per 38 C.F.R. § 3.385 and that the left ear hearing loss was conductive in nature.  

The examiner opined that hearing loss was less likely as not caused by or a result of military noise exposure as a carpenter in service.  The mild hearing loss noted was conductive in the left ear, and the high frequency loss noted in both ears at 6000 Hertz and 8000 Hertz was not considered by the VA to be disabling according to VA criteria.  The examiner further stated that the mild conductive loss in the left ear could possibly be treated and resolve, and therefore was less likely as not caused by or a result of noise exposure as a carpenter while in service.  

The Veteran underwent a fee basis examination in January 2012.  The reason for the visit was noted as bilateral decrease in hearing and tinnitus over the past several years with long-standing left ear asymmetry.  Audiometric testing showed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
15
20
30
LEFT
30
50
40
25
40

Word recognition scores were listed as 92 percent in the right ear and 96 percent in the left ear.    

VA outpatient records show that he was issued unilateral amplification (hearing aid) for the left ear in May 2012.  

Evidence of record shows the Veteran served in Vietnam and he was a carpenter.  His reports of in-service noise exposure are consistent with the circumstances of his service and acoustic trauma is established.  

On review, the Veteran does not meet the criteria for a hearing loss disability in the right ear.  See 38 C.F.R. § 3.385.  In making this determination, the Board acknowledges the word recognition score of 92 percent on fee basis examination in January 2012.  The report, however, shows this was obtained using monitored live voice with the W-22 word list and was not based on the Maryland CNC word list.  Thus, under 38 C.F.R. § 3.385, it is not sufficient to establish a hearing loss disability for VA purposes.  Without a current disability, service connection for the right ear cannot be established.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  

Objective evidence shows a hearing loss disability in the left ear for VA purposes.  The question is whether such was manifested during service or to a compensable degree within one year following discharge from service, or is otherwise related to service.  

As noted, the Veteran reported some hearing loss at induction.  Audiometric testing at that time did not establish or "note" a hearing loss disability for VA purposes, and the claimant is entitled to the presumption of soundness.  See 38 C.F.R. § 3.304(b) (2015).  While the Veteran reported some complaints of hearing loss during service, further evaluation was not considered warranted and whispered voice testing was normal at separation.  On review, there is no evidence of a hearing loss inservice, or a compensably disabling sensorineural hearing loss disability within one year following discharge from active duty.  

In September 2008, the Veteran argued that he was a victim of "herd out" processing and did not get an audiogram at separation.  The Board notes that a normal audiogram at separation does not preclude a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  It follows then that the absence of an audiogram, to include normal findings on whispered voice testing, would also not preclude a grant of service connection.  A Veteran may establish entitlement to service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Id.  

In considering whether there is a relationship between current left ear hearing loss and in-service noise exposure, the Board finds the May 2008 opinion highly probative.  The examiner reviewed the claims folder, discussed in-service and post-service findings in detail, and provided adequate rationale for the opinion.  Significantly the record does not contain probative evidence to the contrary.  That is there is no medical evidence linking the appellant's left ear hearing loss to service. 

In making this determination, the Board acknowledges the Veteran's contentions that he has hearing loss related to service.  As a layperson untrained in the field of medicine he is not, however, competent to diagnose hearing loss for VA purposes or to provide a medical etiology opinion.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  See 38 C.F.R. § 3.102.  


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  




______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs