Citation Nr: 1715324 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 16-23 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force from November 1956 to October 1958. This claim arises to the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied the Veteran's claim of entitlement to service connection for bilateral hearing loss disability. The Veteran's claims file was subsequently transferred to the Boston, Massachusetts, RO, which currently has jurisdiction of the appeal. A motion to advance this appeal on the Board's docket has been raised by the Board's Acting Vice Chairman. The undersigned is granting the motion and advancing the appeal on the docket based upon advancing age. 38 C.F.R. § 20.900(c) (2016) ("advanced age" is defined as 75 or more years of age). FINDING OF FACT A bilateral hearing loss disability was not shown within one year after discharge from service, and the competent and probative evidence does not establish that the Veteran's current bilateral hearing loss disability is due to his period of service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1131, 1154, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.307, 3.309, 3.385 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the VCAA. Under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VA's duty to notify was satisfied by letter on December 2014. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2014) and 38 C.F.R. § 3.159 (c) (2016) to assist the Veteran. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's available service treatment records, military personnel records, VA medical records, VA examination report, and the Veteran's statements. In further fulfilling the duty to assist, the Veteran was afforded a VA examination in connection with his claim in April 2016. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The Board notes that medical opinions are regarded as more probative when they include clear conclusions and supporting data with a reasoned analysis connecting the data and the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the examiner should clearly and rationally consider all procurable and assembled evidence in arriving at a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board finds the April 2016 examination to be adequate in adjudicating the Veteran's claim. The examiner offered definitive conclusions based in rationale. The examiner gave conclusive opinions regarding the nature and etiology of the Veteran's disability using in-person examination and review of the Veteran's records. Here, the examination has been found to be adequate, and thus, has met the requirements to satisfy the duty to assist. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. II. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F. 3d 1372 (2007). For 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above 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 (2016). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss or tinnitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Service connection may also be presumed for chronic diseases, enumerated under 38 C.F.R. § 3.309 (a), which are presumptively linked to service based upon continuity of symptomatology. See 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his bilateral hearing loss is due to his period of service in the Air Force. Specifically, the Veteran asserts that his duty as a teletype machine operator placed him in an underground room with one hundred and fifty machines. He further asserts that, because the noise could not escape, this resulted in noise exposure which caused his hearing loss. Turning to the first element, the Veteran does have a current bilateral hearing loss disability. The Veteran was afforded a VA examination in April 2016. The examiner determined that the Veteran had a diagnosis of sensorineural hearing loss in both ears. The examination also showed an auditory threshold of greater than 40 decibels at the frequency of 2000 Hertz in both the right ear and left ear. Therefore, the audiograms establish a hearing loss disability in each ear for VA purposes. See 38 C.F.R § 3.385. Turning to the second element, the evidence of record suggests that the Veteran may have experienced noise exposure. The Veteran indicated that he served as a teletype operator. In the April 2016 examination, the examiner indicated that the Veteran's Military Occupational Specialty (MOS) had a low probability of noise exposure. The Veteran asserts, however, that because he served three floors below ground level, the sound of the one hundred and fifty teletype machines had no place to escape. The Veteran is competent to report in-service noise exposure that is consistent with the circumstances of this service. See 38 U.S.C.A. § 1154 (West 2014). Accordingly, the Board concedes in-service noise exposure. Notwithstanding the conceded in-service noise exposure, the third element, a causal connection between the military noise exposure and the Veteran's present hearing loss, must be established. In April 2016, a VA examiner found that the Veteran's hearing loss disability was less likely than not to have been caused by or the result of the Veteran's service in the Air Force. The examiner stated that there was no evidence of acoustic trauma during military service and indicated that the Veteran's MOS was considered to be a low probability for hazardous noise exposure. The examiner noted that there was no evidence of hearing loss prior to service. Moreover, the examiner explained that the Veteran's hearing was within normal limits across all frequencies at separation, with no possibility of a threshold shift from enlistment. The examiner also noted that the Veteran has a positive history of occupational noise exposure (pneumatic tools) and recreational noise exposure (motorcycles). The Board finds this examination to have clear conclusions and adequate reasons and bases for such conclusions. The examiner considered the Veteran's current hearing loss and his record of history. The examiner also considered the Veteran's occupational noise exposure both in and out of service. Therefore, the Board finds this examination to be highly probative in nature. The Board has also considered the Veteran's contention that his period of service resulted in his current bilateral hearing loss disability. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, determining the etiology of sensorineural hearing loss falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether the Veteran's currently diagnosed sensorineural hearing loss is related to his service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to the Veteran's assertions that his bilateral hearing loss disability is related to his military service. The Board has considered whether presumptive service connection is warranted for the Veteran's hearing loss disability. See 38 C.F.R. 3.309. However, the record fails to show that sensorineural hearing loss was manifested to a degree of 10 percent within the one year following his service discharge in October 1958. The April 2016 examiner stated that, in reviewing the Veteran's record, she found that the Veteran's hearing was within normal limits across all frequencies at separation, with no possibility of a threshold shift from enlistment. Moreover, the first findings of hearing loss are dated more than 50 years after service. As such, the Board does not find evidence of continuity of symptoms in the years following service, and service connection is not warranted on a presumptive basis or on the basis of continuity of symptomatology. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a grant of service connection for bilateral hearing loss. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs