Citation Nr: 1633992 Decision Date: 08/29/16 Archive Date: 08/31/16 DOCKET NO. 11-20 248 ) 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. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2013, the Veteran testified at a Travel Board hearing before a Veterans Law Judge who is no longer employed with the Board. A transcript of the proceeding is in the record. In June 2016, the Veteran was informed that the Veterans Law Judge who had conducted his Board hearing had retired and he, therefore, had a right to an additional hearing before a different Veterans Law Judge. The following month, the Veteran indicated that he did not want an additional Board hearing. The Veteran's claim was last before the Board in May 2014 and was remanded for additional evidentiary development. The Board is satisfied that there has been substantial compliance with the remand directives on the issues of entitlement to service connection for bilateral hearing loss. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran's currently diagnosed bilateral hearing loss was present during active service, manifested within one year of discharge from service, or developed as a result of any incident during service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance 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; 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). II. Service Connection The Veteran contends that he developed bilateral hearing loss as a result of acoustic trauma while serving as a vehicle mechanic in service. According to the Veteran, his military occupational specialty (MOS) and the military duties associated with this specialty caused him to be exposed to large vehicle noise on a daily basis. The Veteran further states that hearing protection was not provided during service. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. Pure tone thresholds above 20 decibels indicate some hearing loss, irrespective of whether it is severe enough to qualify as a disability for VA compensation purposes. See Hensley, 5 Vet. App. at 157. If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, such as sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's currently diagnosed bilateral hearing loss became manifest or otherwise originated during his period of service, within one year of discharge from service or is otherwise related to his military service. The Veteran's DD-214 reflects that he served on active duty from February 1971 to February 1974 and that his military occupational specialty (MOS) was that of a Wheel Vehicle Mechanic. The DD-214 further reflects that the Veteran received the Sharpshooter (Rifle) award in service. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Exposure to acoustic trauma in service is conceded. In his February 1970 Report of Medical History, the Veteran checked "no" to a box asking whether he ever had hearing loss. His February 1970 enlistment examination included an audiogram with pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 -- 0 LEFT 5 0 0 -- 10 The Veteran's November 1973 Report of Medical Examination reflects audiometric results as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 -- 0 LEFT 0 0 0 -- 0 In a January 1974 statement, the Veteran attested that there had been no change in his medical condition since his separation medical examination. A review of the remainder of the Veteran's service treatment records revealed no complaints, treatment or diagnosis of hearing loss while on active duty. A December 2010 statement from the Veteran's wife attested that she has been married to the Veteran since January 1971, and the Veteran's hearing has deteriorated since that time. In February 2011, the Veteran was afforded a VA examination where he was diagnosed with bilateral sensorineural hearing loss. The examination report noted the Veteran endorsed military noise exposure in basic training and while working as a vehicle mechanic. He also reported recreational noise exposure from hunting but stated that hearing protection was worn. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 30 35 LEFT 15 15 30 45 50 Speech audiometry revealed speech recognition scores of 100 percent in the right ear and of 96 percent in the left ear. The VA examiner concluded that given the Veteran's normal hearing bilaterally on his discharge audiogram and the lack of evidence of a significant threshold shift from induction to discharge, his hearing impairment was less likely as not (less than 50/50 probability) caused by or a result of military noise exposure. In an August 2011 addendum opinion, a VA examiner again concluded the Veteran's bilateral hearing loss was not due to military acoustic trauma. In support of this conclusion, the VA examiner cited the Institute of Medicine (IOM) reports which state that evidence from laboratory studies in humans and animals was sufficient to conclude that the most pronounced effects of a given noise exposure on puretone 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. Further, the VA examiner stated that the current science indicates that the understanding of the mechanisms 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 VA examiner stated that 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-induced hearing loss than individuals without such pre-existing hearing loss. The VA examiner concluded that any worsening of hearing from the time of discharge to the present was due to noise exposure between the times of discharge to the present, and the medical literature supported this assessment even if a significant shift in hearing was found between entrance and exit audiometric testing. Post-service VA treatment records include a December 2011 audiology clinic note showing the Veteran was seen for a hearing aid fitting. It was noted that the Veteran had never previously used hearing aids. A January 2014 VA primary care note reflected that the Veteran had no hearing concerns. At his April 2013 Board hearing, the Veteran testified that his hearing loss was progressive in nature, and he first began seeking medical treatment at a VA facility for his impaired hearing five years earlier at the recommendation of his wife. In a July 2014 statement in support of his claim, the Veteran wrote that prior to his initial VA claim, he did not seek treatment from any medical professional for hearing loss. The Board finds the February 2011 VA medical opinion and August 2011 VA addendum opinion are entitled to great probative weight. The opinions were rendered following examination of the Veteran and a complete review of his claims file. The opinions considered the Veteran's reports of noise exposure both during and after military service and provided adequate rationales for the conclusion that was based on the record and the examination findings. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The examiner specifically noted that there was no evidence of a significant threshold shift from induction to discharge and cited to the IOM studies as support for the negative opinion. There is no medical opinion to the contrary in the record concerning the etiology of the Veteran's hearing loss. An October 2014 VA examiner's opinion concerning the etiology of the Veteran's hearing loss also is included in the record. However, the opinion is based, in part, on an inaccurate factual premise and is therefore inadequate to adjudicate the Veteran's claim. Specifically, the October 2014 VA examiner noted that the Veteran checked "no" to a question asking whether he had hearing loss in a Report of Medical History at the time of his separation. However, a review of the Veteran's claims file found no such attestation by the Veteran at or near the time of his separation from active duty service. The only other evidence supporting the Veteran's contention that his bilateral hearing loss was the result of in-service noise exposure comes from his own lay statements and that of his wife. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). While the Veteran is competent to report symptoms of hearing loss, he has not shown that he possesses the medical expertise needed to offer a nexus opinion relating his current hearing loss to noise exposure during service As a chronic condition, hearing loss would be entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. In this case, the evidence of record does not reflect that the Veteran had a hearing loss disability under 38 C.F.R. § 3.385 one year after separation from active duty service. The first medical evidence establishing that the Veteran was diagnosed with hearing loss came many years after discharge from active duty service. As such, the Board has no basis upon which to determine that the Veteran had bilateral hearing loss within one year of his separation. Therefore, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Based on the totality of the record, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for bilateral hearing loss. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs