Citation Nr: 1735637	
Decision Date: 08/28/17    Archive Date: 09/06/17

DOCKET NO.  12-21 294	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for hearing loss in the left ear.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

P. Saindon, Associate Counsel


INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) in the United States Army Reserve from March 1996 to June 1996.  Afterwards he served in the Army National Guard of Tennessee from February 1999 to February 2007, which included ACDUTRA from May 1999 to July 1999, activation for full-time active duty from June 2003 to December 2003, and additional periods of inactive duty for training (INACDUTRA).

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied service connection for bilateral hearing loss.  By a rating action dated in December 2015, and subsequent to a Board remand, service connection for right ear hearing loss was established.  

The Veteran and his spouse testified before the undersigned Veterans Law Judge at a December 2014 videoconference Board hearing.  The transcript is of record.  

In May 2015 the Board remanded this matter in order to obtain a supplemental medical opinion.  The matter has now returned for adjudication.


FINDING OF FACT

The Veteran's left hearing loss was not incurred in or caused by active service; it did not manifest to a compensable degree within one year of service; and the Veteran did not experience continuous symptoms of hearing loss from service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for hearing loss in the left ear have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 4.85, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.
 
The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value.  The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).  Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value.  If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail.  On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  Generally, the evidence 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 or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).

Certain chronic diseases, such as organic conditions of the nervous system (including sensorineural hearing loss), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  This presumption is limited, however, to periods of at least 90 days of active, continuous service.  38 C.F.R. § 3.307(a)(1).  The Veteran's May 4, 1999 to July 28, 1999 ACDUTRA service does not satisfy this requirement.

An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  38 C.F.R. § 3.303(b).  Continuity of symptomatology may be shown if "the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology."  Savage v. Gober, 10 Vet. App. 488, 498 (1997).

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).
 

The Veteran's service treatment records (STRs) included multiple audiograms.  In June 1998, the Veteran's pure tone thresholds, measured in decibels, were as follows:




HERTZ



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

In June 2003, the Veteran's pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
35
60
LEFT
15
20
20
30
30

Concurrently with the June 2003 hearing test, the Veteran denied that he had experienced hearing loss.

In September 2003, the Veteran's pure tone thresholds were as follows:




HERTZ



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

In July 2005, the Veteran's pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
25

20
LEFT
15
20
20

30

Also in July 2005, the Veteran reported that he had suffered previously from hearing loss.  

The Veteran was afforded a VA audiology examination in October 2010.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
45
45
50
LEFT
30
40
40
40
40

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 in the left ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss.  The examiner opined that at the beginning of active duty in 2003 the Veteran showed mild hearing loss at several frequencies in each ear, but that at the end of the active duty period the frequencies changed by no more than 15 decibels.  The examiner also noted that the audiogram from 1998 showed normal hearing.  The examiner concluded that "[i]t appears that the hearing loss present in June of 2003 began sometime between 1998 and 2003, while the Veteran was not on active duty."  

In December 2014, the Veteran testified that he fired stinger missiles and had hearing loss during service.  

A supplemental examination opinion was obtained by a different audiologist in September 2015 to consider whether hearing loss could have occurred during the Veteran's ACDUTRA period in 1999.  The examiner noted that the Veteran's hearing underwent a high frequency shift in the right ear resulting in temporary hearing loss in 2003.  Although the examiner opined that the hearing loss resolved by 2005, she noted that a significant shift in high frequency loss within the normal range had occurred in the right ear.  Thus she concluded the right ear was more likely than not service connected.

As to the left ear, however, the examiner opined that there was no permanent threshold shift at any frequency.  Some frequencies shifted in 2003, but they resolved by 2005.  Accordingly the examiner opined that the left ear hearing loss was less likely than not the result of military noise exposure.

The Veteran has bilateral hearing loss that satisfies the requirements of 38 C.F.R. § 3.385.  Shedden element (1) is satisfied.

The Veteran has alleged exposure to noise, and the Veteran's DD 214 provides some corroborating evidence that the Veteran served to launch missiles.  This satisfies Shedden element (2).

A nexus between hearing loss for the left ear and service, however, has not been established.  The Veteran's 2005 examination revealed that the Veteran's hearing loss had resolved and that there was no residual shift in thresholds compared to his 1998 examination.  The September 2015 VA examiner opined that the Veteran's current hearing loss was not etiologically related to the Veteran's prior military service for this reason.  The VA examiner's opinion and the objective data are weighed heavily in this instance.

The Veteran did testify that he had hearing loss during military service.  The Veteran is certainly competent to report hearing loss.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  But this is not inconsistent with the objective evidence and the VA examiner's opinion as they agree that the Veteran did have some degree of hearing loss during service.  Indeed the Veteran is now service connected for the hearing loss in his right ear.  The evidence indicates, however, that the Veteran's hearing loss of the left ear resolved after service without a substantial threshold shift.  The VA examiner opined that although the Veteran had hearing loss previously, and has hearing loss now, the two incidents are not etiologically related because of this resolution.  As the Veteran's hearing loss resolved after service, and as the VA examiner opined that this resolution broke the causal chain necessary for nexus, the weight of the evidence is against Shedden element (3) being satisfied.

Service connection cannot be established under the chronic disease presumption.  Even if the Veteran's period of service qualified, the Veteran has never had a compensable level of hearing loss as rated by 38 C.F.R. § 4.85, Diagnostic Code 6100.  Although his October 2010 examination revealed hearing loss sufficient for 38 C.F.R. § 3.385, Diagnostic Code 6100 provides for a non-compensable rating for the pure tone thresholds measured (both alone and in conjunction with his speech recognition scores).  Even if the Veteran were found to have worsened hearing now, the compensable level of hearing loss must occur within one year of service.  38 C.F.R. § 3.307(a)(3).  

Service connection under the continuity of symptomatology is also not appropriate.  The 2005 audiogram results indicated that the Veteran's hearing loss resolved for a period of time.  This breaks the necessary continuity.

As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.  Service connection for left ear hearing loss must therefore be denied.


ORDER

Entitlement to service connection for hearing loss in the left ear is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs