Citation Nr: 1633356 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 11-06 055 ) 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 Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from March 1969 to March 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board has reviewed the contents of the Veteran's electronic Virtual VA and Veterans Benefit Management System (VBMS) claims files. The Veteran testified at a June 2013 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS record. The Board remanded this matter in May 2014 to obtain a VA examination and additional treatment records. That development has been completed, and the matter is ready for further appellate consideration. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss began in service, manifested to a compensable degree within one year of discharge or is etiologically related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In April 2009, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. The Veteran was also provided notice as to how disability ratings and effective dates are assigned. VA further fulfilled its duty to assist the appellant in obtaining relevant evidence to substantiate his claim for entitlement to service connection for bilateral hearing loss and by providing VA examinations in September 2012 and July 2014. In addition, there has been substantial compliance with the Board's remand as the AOJ obtained outstanding VA treatment records and sent the Veteran a letter in July 2014 which requested that he provide information concerning any outstanding medical records that are relevant to his claim. See June 2013 Hearing Testimony. To this date, the Veteran has not responded and therefore no additional actions were required of VA. Further, a VA addendum opinion was provided by the 2012 VA examiner in July 2014. The examiner indicated, however, that an in-person examination took place. Further, the examiner reviewed the history and provided an opinion supported by a rationale. Therefore, the VA examination substantially complied with the Board's remand. Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication as to entitlement to service connection for bilateral hearing loss, at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Laws and Regulations Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for certain chronic disorders, including sensorineural hearing loss, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection, the Veteran must show (1) a present disability, (2) an 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). For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold at 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 utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Normal puretone thresholds during service does not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran seeks entitlement to service connection for a bilateral hearing loss. His DD Form 214 shows his military occupational specialty (MOS) was military police. He has testified that he had an infiltration course during basic training, and a firing range course during military police training. See June 2013 Hearing Testimony. At the time of the Veteran's August 1968 enlistment examination, puretone thresholds, in decibels, were as follows: HERTZ A 500 B 1000 C 2000 D 3000 E 4000 RIGHT 20 10 0 N/A -5 LEFT 0 -5 -5 N/A 15 The enlistment examination demonstrates that the Veteran's hearing was normal in both ears. At the time of the Veteran's January 1971 separation examination, puretone thresholds, in decibels, were as follows: HERTZ A 500 B 1000 C 2000 D 3000 E 4000 RIGHT 0 0 0 N/A 5 LEFT 0 0 0 N/A 0 The separation examination also demonstrates that the Veteran's hearing was normal in both ears. Both the August 1968 enlistment examination and the January 1971 separation examination reflect that the Veteran was assigned a PULHES value of "1" for his hearing, indicating normal function and fitness for military assignment. PULHES is a United States military acronym used in the Military Physical Profile Serial System. It is used to qualify an enlistee's physical and psychiatric profile for each military skill. Each letter in the acronym "PULHES" is paired with a number from 1 to 4 to designate the serviceperson's physical capacity. The "H" in the PULHES acronym stands for "hearing and ear." Four numerical designations are used to reflect different levels of functional capacity, with "1" indicating essentially normal functioning, with each increasing number indicating increased impairment or potential for elevated impairment. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. See generally, Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991). In November 1967 and March 1971, the Veteran had audiograms completed by his employer. Those examinations used American Standards Association (ASA) units to record puretone sensitivity thresholds in audiometric measurement. VA currently uses International Standard Organization (ISO) units. The two tables below show the ASA measurements with the comparable ISO measurements in parentheses. At the time of the November 1967 examination, puretone thresholds, in decibels, were as follows: HERTZ (FOR ISO add) A 500 (15) B 1000 (10) C 2000 (10) D 3000 (10) E 4000 (5) RIGHT 15 (30) 5 (15) -10 (0) -10 (0) -10 (-5) LEFT -5 (10) -5 (5) -5 (5) 5 (15) 10 (15) The November 1967 examination demonstrates that the Veteran's hearing was normal in both ears pursuant to 38 C.F.R. § 3.385. At the time of the March 1971 examination, puretone thresholds, in decibels, were as follows: HERTZ (FOR ISO add) A 500 (15) B 1000 (10) C 2000 (10) D 3000 (10) E 4000 (5) RIGHT 10 (25) 5 (15) 0 (10) 10 (20) -5 (0) LEFT 0 (15) -10 (0) 5 (15) 20 (30) 15 (20) The March 1971 examination demonstrates that the Veteran's hearing was normal in both ears pursuant to 38 C.F.R. § 3.385. At a September 2012 VA examination, the Veteran reported military noise exposure from tanks and helicopters during service as a military police officer. Audiometric testing showed puretone thresholds, in decibels, as follows: HERTZ A 500 B 1000 C 2000 D 3000 E 4000 RIGHT 30 25 50 65 65 LEFT 5 5 50 60 65 Speech discrimination scores were 90 percent bilaterally. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner reviewed the claims file and opined that it was less likely than not that the bilateral hearing loss was etiologically related to service. The examiner noted that the Veteran's audiogram at separation indicated normal hearing. The examiner concluded that the hearing loss was most likely due to civilian occupational noise exposure (providing factory machine maintenance for 30 years) and recreational noise exposure (firearms and power tools). At a July 2014 VA examination, the examiner evaluated the Veteran using the September 2012 audiometric results discussed above. The Veteran was again diagnosed with bilateral sensorial hearing loss. The examiner determined the bilateral hearing loss was less likely than not related to active duty service. The examiner noted the employment and service examinations, and found no significant differences among the entrance examination, separation examination, and March 1971 employment examination. The examiner explained that, according to the Institute of Medicine, there is insufficient evidence for delayed-onset of hearing loss secondary to military noise exposure. The examiner opined that if hearing is normal upon discharge, there is no scientific basis to conclude current hearing loss is causally related to military service. The examiner also noted that there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz for either ear. The examiner further noted the Veteran's lay statements reporting significant military noise exposure and the onset of tinnitus during service. However, the examiner concluded that the evidence clearly supported the fact that the hearing loss was not incurred during service, explaining that it was most likely due to a long history of civilian occupational noise exposure providing factory machine maintenance for 30 years. VA treatment records reflect treatment for hearing loss, including the prescription and use of hearing aids. See, e.g., May 2014 VA Treatment Records. In this case, the September 2012 and July 2014 VA examiner's opinions are highly probative. The examiner reviewed the claims file and provided a rationale for the opinion that the Veteran's bilateral hearing loss was less likely than not related to his military service based on audiometric evidence in the file showing no significant differences between the enlistment examination and separation examination. Further, the July 2014 examiner addressed the Veteran's lay statements. Finally, the July 2014 examiner employed medical literature and guidelines in concluding there was no nexus between current hearing loss and military service. The Veteran contends that his hearing loss is the result of his military service. See June 2013 Hearing Testimony. The Veteran also reported in October 2014 that his factory work involved strict rules to always wear hearing protection and thus he did not think his post-service employment was the primary cause of his condition. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology and noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, however, the Board does not find that the Veteran is competent to provide an opinion relating his current hearing loss to his military service. Such an inquiry is within the province of trained medical professionals because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. Nevertheless, even assuming that the Veteran is competent to opine on this medical matter, the specific, reasoned opinions of the VA examiner are of greater probative weight than the general lay assertions in this regard. The examiner reviewed and considered the evidence of record, and provided a medical opinion with supporting rationale relying on medical training, knowledge, and expertise. A sensorineural hearing loss is an organic disease of the nervous system and is eligible for the chronic disease presumption under 38 C.F.R. §§ 3.307 and 3.309. In this case, however, a sensorineural hearing loss was not manifested to a compensable degree within the year following the Veteran's separation from active duty. Therefore, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307 and 3.309. Moreover, continuity of symptomatology is not shown as hearing loss was not noted in service as shown by audiometric results upon the separation examination. The preponderance of the most probative evidence is against the claim of entitlement to service connection for bilateral hearing loss. As such, there is no reasonable doubt to resolve in favor of the Veteran. The claim is denied. ORDER Entitlement to service connection for a bilateral hearing loss is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs