Citation Nr: 1751223	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  10-33 729	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. Coogan, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from July 1975 to September 1995.  The Veteran was awarded the Army Achievement Ribbon, Overseas Ribbon, and Army Commendation Medal, among other decorations.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Board previously remanded this case in June 2014 and February 2017.


FINDINGS OF FACT

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

2.  The Veteran's current right ear hearing loss did not have onset during service, was not caused by service, and did not manifest within one year of separation from service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1101, 1110 , 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The required notice was provided and neither the Veteran, nor his representative, has alleged or demonstrated any prejudice with regard to the content or timing of the VA's notices or other development.  See Shinseki v. Sanders, 556 U.S. 1696 (2009).  Thus, the duty to notify has been satisfied.  

As for the duty to assist, pertinent post-service medical records have been obtained and no outstanding post-service records have been identified by the Veteran that have not been sought.  Therefore, no additional evidence that may aid the Veteran's claims or might be pertinent to the bases of any claim decided herein, has been submitted, identified, or remains outstanding.  The duty to assist has been satisfied. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion, when necessary to make a decision on the claim.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The Veteran was afforded VA audiological examinations in September 2008 (QTC) and March 2017.  The examiners, medical professionals, listened to the Veteran's assertions and tested his hearing for bilateral hearing loss.  

The Board acknowledges that the March 2017 VA examiner did not have access to the Veteran's July 1975 entrance audiological examination when making his report, because the Veteran's entrance examination was only added to the record afterwards.  Instead, the VA examiner relied on a later September 1983 audiological examination for his assumption that the Veteran had normal hearing when he entered military service in 1975.  Because, however, both the Veteran's July 1975 entrance examination and the September 1983 examination showed normal hearing, the Board finds that remanding the Veteran's claim for another VA examination based on the July 1975 entrance examination would serve no useful purpose and would not change the VA examiner's findings or conclusion.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

There is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the issue decided herein; consequently, the Board finds that any such failure is harmless.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection

The Veteran claims entitlement to service connection for bilateral hearing loss.  He contends that during his twenty years in the U.S. Army, in the Infantry and then in Aviation, he was exposed to excessive noise, including from aircraft, helicopters, and weapons use, and that he suffers a current hearing loss disability as a result of the in-service noise exposure.

In adjudicating these claims, the Board has reviewed all of the evidence in the record on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence, certainly not in exhaustive detail.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, concerning the claims.

Service connection may be established for a disability resulting from diseases or injuries that are clearly present in service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires evidence of:  (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability.  See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Service connection may also be granted on a presumptive basis for chronic disabilities, such as sensorineural hearing loss, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  In addition, as an alternative to the nexus requirement, service connection for a chronic disability, such as sensorineural hearing loss, may be established through a showing of continuity of symptomatology since service.  38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  For a showing of continuity of symptomatology, however, the showing must still be made during the period of service or within one year after separation from service.  See also 38 C.F.R. § 3.303(b) (clarifies that the rule on chronic diseases and service connection does not mean that any manifestation of a symptom in service, e.g., joint pain, will permit service connection of a disease that first shows as a clear-cut clinical entity at some later date, e.g., arthritis; showing of chronic disease in service requires manifestations sufficient to identify the disease entity and establish chronicity at the time, not merely isolated findings).

Impaired hearing is considered a disability when:  the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of those 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.  Even though disabling hearing loss is not demonstrated at separation, a Veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 157, 159-60, 164 (1993) (also noting that the threshold for normal hearing is from 0 to 20 dB).

The Veteran asserts that he has a bilateral hearing loss disability as a result of in-service noise exposure.  The Veteran has been diagnosed with a current right ear hearing loss and the VA has conceded that the Veteran was exposed to noise while in service.  See, e.g., Rating Decision November 28, 2008 (conceding in-service noise exposure).  Therefore, the questions on appeal are whether the Veteran has left ear hearing loss, and whether the Veteran's right ear hearing loss relates to service (i.e., nexus).

A review of the Veteran's audiological examinations over the years demonstrates that, although the Veteran's hearing had a temporary threshold hearing shift and mild hearing loss at one point while he was in service, his hearing improved again by the time he retired from the military.

The Veteran's hearing was normal on entry into the U.S. Army in July 1975:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
/
0
LEFT
15
15
10
/
5

An audiological examination from September 1983 also showed normal hearing:




HERTZ



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

An October 1985 examination, however, showed a worsening.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
20
15
35
LEFT
20
20
25
25
30


A subsequent audiological examination in 1987 showed the Veteran's hearing test results had improved again.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
10
5
20
LEFT
0
0
10
10
10

Similarly, the Veteran's April 19, 1995 retirement examination showed improved results over his October 1985 test, with pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
25
LEFT
10
10
15
20
15

Thus, although the audiometric records show a change in the Veteran's hearing while in service, they also demonstrate that any hearing loss improved prior to the Veteran's separation from service.

After the Veteran filed his current bilateral hearing loss claim, he was given two VA examinations, one in September 2008 and another in March 2017.  The Veteran's September 2008 VA audiological examination (conducted by QTC) showed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
20
30
LEFT
15
15
20
25
30

Speech recognition with the Maryland CNC word list was 100%, bilaterally.

The September 2008 VA examiner reviewed the Veteran's history as related by the Veteran himself, including that the Veteran said he had had hearing loss for ten years and that the Veteran reported in-service noise exposure from weapons fire and helicopter noise.  The examiner noted that the Veteran stated that, after military service, he worked as an instructor for six months and then did office work for nine years, and that the Veteran stated that he had not been exposed to loud noise outside of military service.  The VA examiner concluded that the Veteran's separate claim for tinnitus was as likely as not due to acoustic trauma during military service as an infantryman in the US Army, and stated that the Veteran had been exposed to excessive, loud noise.  For the Veteran's hearing loss claim, however, the VA examiner found that the Veteran had no hearing problems, and that there was no hearing loss present in either the right or left ear.

The Veteran's most recent VA examination, in March 2017, showed pure tone thresholds, in decibels, as follows: 




HERTZ



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

Speech recognition with the Maryland CNC word list was 94%, bilaterally.

The March 2017 VA examiner listed the records he had reviewed in preparing his report, including Service Treatment Records (STRs), post-service medical treatment records, lay statements, and the previous Compensation & Pension (C&P) audiological examination.  The VA examiner found there was no permanent positive threshold shift greater than normal measurement variability, for both ears.  

The March 2017 VA examiner concluded that the Veteran's hearing loss in either ear, if present, was not "at least as likely as not" caused by or a result of an event in military service.  

The March 2017 VA examiner provided a detailed analysis of his reasoning and conclusions.  He noted that he had no access to the Veteran's enlistment audiogram, but stated that it appeared, based on the normal September 1983 audiogram, that the Veteran had entered military service with normal hearing bilaterally.  Then, the VA examiner reported, a temporary significant threshold shift and mild hearing loss was present at 4000Hz bilaterally on the October 1985 audiogram, which was consistent with military noise exposure.  The VA examiner also noted, however, that the audiogram dated November 1987 showed a significant improvement, with normal hearing bilaterally from 500-6000Hz.  In addition, the VA examiner noted, the Veteran's April 1995 retirement audiogram showed normal hearing bilaterally from 500 - 6000Hz, with no significant threshold shifts when compared to the September 1983 audiogram.

The VA examiner considered the Veteran's statements about his in-service noise exposure from aircraft, helicopters, and weapons use, as well as a "buddy statement" about the Veteran speaking loudly.  The VA examiner also noted that, during the C&P examination, the Veteran had denied significant post-military occupational noise exposure, but that this statement was directly contradicted by multiple medical reports over the years, documenting that the Veteran worked post-service at an Air Force base where he was exposed to aircraft noise and wore hearing protection devices. 

In his conclusions, the VA examiner again pointed out that the Veteran's April 1995 retirement audiogram showed his hearing was normal at separation from military service.  The examiner acknowledged that the Veteran was exposed to hazardous noise during service, but stated that, once military noise exposure was removed, hearing would not be expected to get worse, as a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.  The VA examiner concluded that the Veteran's current hearing loss was "NOT" due to or aggravated by military noise exposure, and was more likely due to post-military occupational noise exposure, aging, or other factors, as it developed post-separation from active duty.  The VA examiner cited to medical literature supporting his conclusion that delayed onset of noise-induced hearing loss is extremely unlikely.    
Returning to an analysis of whether a service connection exists for the Veteran's claimed bilateral hearing loss, the Board will address service connection for the Veteran's left and right ear claims separately, since each involves a different analysis.

1.  Left Ear

Audiometric testing does not establish that the Veteran has a hearing loss disability in his left ear.  The Veteran's audiometric tests for his left ear do not show:  that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000Hz is 40 decibels or greater; or that the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or that the Maryland CNC speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  Thus, although the Veteran asserts he has hearing loss, the audiometric tests clearly show no current hearing loss disability in the left ear.  Without competent evidence of a left ear hearing loss disability, there is no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The claim for service connection for left ear hearing loss is denied.

The Board notes that the Veteran is competent to report the current sensation of decreased hearing acuity.  However, he is not competent to diagnose hearing loss or to opine that it meets the criteria for qualification as a disability for VA purposes.  These assessments are not simple in nature and require specific audiometric testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (although the Veteran is competent in certain situations to diagnose a simple condition such as varicose veins, the Veteran is not competent to diagnose more complex medical questions).

2.  Right Ear

In contrast, the Veteran does have a current right ear hearing loss, as shown by the Veteran's March 2017 VA examination, which measured his right ear pure tone threshold at 4000 Hz at 40 decibels.  38 C.F.R. § 3.385.  Thus, the Veteran has satisfied the first required element to establish a service connection for his claimed right ear hearing loss, i.e., a current disability.

The second required element to establish a service connection is an in-service incurrence or aggravation of a disease or injury.  The VA has conceded exposure to acoustic trauma while in service.  See, e.g., Rating Decision November 2008 (granting tinnitus service connection for exposure to excessive, loud noise).  Thus, the Veteran has satisfied the second required element to establish a service connection for his claimed right ear hearing loss, i.e., an in-service event.

Accordingly, the remaining question is whether the current right ear hearing loss is related to the Veteran's noise exposure during service (i.e., nexus).  The Veteran's in-service medical records do not show a diagnosis of hearing loss while in the service.  In addition, the evidence of record does not show that the Veteran's right ear sensorineural hearing loss manifested to a compensable degree within one year following service separation.  Therefore, hearing loss may not be presumed to have been caused in-service.

The Board finds the March 2017 VA opinion is of significant probative value on the nexus question, as it considers the relevant evidence of record as it pertains to the Veteran's hearing loss disability, and includes adequate reasons and bases for the opinion rendered.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The March 2017 VA examiner examined the Veteran, studied the Veteran's medical and service records, and, despite acknowledging the veteran's reported in-service noise exposure, concluded in a well-reasoned, credible, and detailed opinion, with some emphasis, that the Veteran's current hearing loss was "NOT" due to or aggravated by military noise exposure, and was more likely due to post-military occupational noise exposure, aging, or other factors, as it developed "POST-separation" from active duty service.  March 2017 VA C&P Examination (capitals in original).

In contrast, the Veteran's statements in support of his claim have less probative value.  The Veteran reportedly stated during his C&P examinations that he had had little noise exposure in his post-military work, but multiple references in the Veteran's file, some of which are cited by the March 2017 VA examiner, show that the Veteran's post-military work has continued to be around noisy aircraft.  See, e.g., February 2016 BAMC Audiology Exam (patient reports that he continues to work around aircraft and consistently uses double hearing protection); February 2015 BAMC Audiology Exam (important to use hearing protection as works around jets); December 2014 "Buddy Statement" (from Veteran's current supervisor at Air Force Base where Veteran is a Lead Controller in Maintenance Operations Center); May 2008 BAMC Audiology Exam (patient still noise exposed on aircraft maintenance job at Air Force base; wears hearing protection devices at work).

Further, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for the Veteran's right ear hearing loss.

Therefore, the Board finds that the third element required to establish service connection for the Veteran's right ear hearing loss, a causal relationship between the claimed in-service disease or injury and the current disability (i.e., nexus), is lacking in this case. 

In addition, the Veteran has failed to establish that he had any continuity of symptomatology for his hearing loss from the time of his discharge to the present.  For example, in his initial Veteran's Application for Compensation and/or Pension in August 2008, the Veteran stated that for his Hearing Loss and Tinnitus, the "Date disability occurred" was 2000, which is five years after he separated from military service.  Similarly, in his September 2008 VA examination, the Veteran reportedly stated that his hearing loss had existed for ten years, which would still indicate a start date three years after his discharge.  In a May 2005 consultation for other symptoms, the report says, "Hearing:  No hearing loss was noted."  In addition, as described above, the Veteran was first diagnosed with a hearing impairment for VA purposes only in 2017, over twenty years after his separation from the military, and only in his right ear. 

Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of service connection.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the Veteran's claim for bilateral hearing loss is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is denied.



____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs