Citation Nr: 1751333	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  13-34 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel


INTRODUCTION

The Veteran served on active duty from January 1973 to January 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The record in this matter consists of electronic claims files and has been reviewed.  


FINDING OF FACT

A chronic hearing loss disability was not manifest during service and is not attributable to service. 


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

VA has a duty to notify and to assist the Veteran in the development of his claim.  The duty to notify has been met.  Neither the Veteran nor his representative has alleged error with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  With regard to the duty to assist, the Veteran's records, to include service personnel records (SPRs), service treatment records (STRs), and VA and private treatment records, have been obtained.  Moreover, the Veteran underwent VA audiology examination during the appeal period, the reports of which are adequate to decide the claim on appeal.     
The Board finds that further action is unnecessary under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.  The Veteran will not be prejudiced as a result of the Board's adjudication of the issue below.

II.  Service Connection for Bilateral Hearing Loss

The Veteran contends that he incurred bilateral hearing loss disability during service as the result of noise exposure while working as an aerospace mechanic in the U.S. Air Force.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).  To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as sensorineural hearing loss are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a)).

Under VA guidelines, hearing loss will be considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on the merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The evidence in this matter demonstrates that the Veteran has current hearing loss disability, and that he experienced acoustic trauma and hearing loss during service.  VA audiology examination reports dated in March 2011 and April 2015 note in each ear auditory thresholds over 40 decibels in relevant frequencies, and speech recognition scores below 94 percent.  See 38 C.F.R. § 3.385.  The evidence also indicates that the Veteran experienced acoustic trauma during service.  The Veteran served in the Air Force as an aerospace mechanic.  As noted by the April 2015 VA examiner, he was likely exposed to acoustic trauma during his duties.  Further, certain STRs indicate diminished hearing loss during service.  December 1975 audiogram reports indicate auditory thresholds over 40 in relevant frequencies for the right ear.  See 38 C.F.R. § 3.385.  

The preponderance of the evidence indicates, however, that the Veteran's current hearing loss did not begin during service or within the first year of separation from service, and that the hearing loss is not otherwise related to service, to include the acoustic trauma he experienced then.  Medical evaluation just prior to discharge from service did not reveal the presence of any chronic hearing disability.  A December 1976 separation report of medical examination found the Veteran's hearing within normal limits.  The report indicates auditory thresholds from 0 to 20 decibels in the frequencies between 500 and 4000 Hz.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the threshold for normal hearing is from 0 to 20 decibels).  Further, the record contains no medical evidence dated between January 1977 and January 1978 - within the first year of discharge from service - indicating hearing problems.  

The earliest post-service medical evidence indicating hearing loss disability is found in an October 1990 report of medical examination completed pursuant to reserve service.  This report is dated over 13 years after discharge from active duty.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection).  Thus, no evidence dated between 1977 and 1990 indicates that the Veteran then had chronic hearing disability.  Notwithstanding the acoustic trauma during service, and the audiograms indicating hearing loss in December 1975, the record does not document the existence of chronic hearing loss disability during service, within the first year of separation from service, or for many years following service.  The preponderance of the evidence indicates that, for approximately 13 years following service, the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity.  See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker, supra.    

Nevertheless, when hearing disability is not demonstrated at separation from service, service connection may be established later by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  The issue of medical nexus is addressed here in the March 2011 and April 2015 VA examination reports.  The March 2011 VA examiner found hearing loss unrelated to service.  In support, the examiner noted that "entry and separation audiograms show no significant change in thresholds during military service."  The examiner noted the Veteran's reported post-service employment in "assembly line work making forklifts 1984-1989, industrial mechanic worked on machines when they were shut down 1977-1981, construction as cement finisher 15yrs, rec-lawn equip."  And the examiner stated that "[p]ost military occupational noise exposure is significant and is possible that current hearing loss is related to that."  

Likewise, the April 2015 VA examiner found hearing loss unrelated to service, noting that hearing acuity was measured as normal at separation from service.  With regard to the "significant varying degrees of thresholds on some of the audiograms" during service, the examiner stated that the Veteran's STRs noted "throat problems, nasal congestion, sinus congestion, allergic rhinitis, and ear impactions all of which may have contributed to the fluctuations in thresholds on the audiograms."  The examiner also indicated that the in-service audiogram results indicating high thresholds were "poor test/retest reliability" inasmuch as the Veteran's responses fluctuated so much in audiograms dated from the middle to the end of December 1975.  Indeed, the in-service elevated thresholds are limited to audiograms conducted in mid-December 1975, and are bookended by normal audiogram test results dated in July 1975 and December 30, 1975.  The April 2015 examiner also referred to the Veteran's post-service "20+ years of occupational industrial noise exposure" in professions such as concrete and general construction.  
    
The Board finds the March 2011 and April 2015 opinions persuasive.  Each examiner noted the Veteran's medical history and exposure to noise during service, each indicated a review of the claims file, each interviewed the Veteran, and each examined the Veteran.  Further, each opinion is based on the evidence summarized earlier, which indicates no chronic disability for over 13 years following service.  As such, the Board finds the opinions of probative value.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion).  

In assessing these claims, the Board has considered the Veteran's lay assertions that service relates to current hearing loss.  His assertions have been considered because he is competent to report observable symptoms such as diminished hearing capacity.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, the medical evidence, and lack thereof, is more credible than his lay assertions.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  As the medical evidence is more credible, it is of more probative value.  Indeed, the Veteran's lay assertion regarding etiology is undermined by the 13-year period following service indicating no hearing problems.  Further, the lay assertion regarding etiology is not medically significant, particularly when compared with the detailed and persuasive findings by the neutral VA examiners.  In weighing the evidence, the Board finds that these reports and opinions preponderate against the lay assertion regarding the development of hearing loss.  See Alemany and Gilbert, both supra.  

To review, the Veteran maintains that his current hearing loss relates to his documented noise exposure during service.  Nevertheless, the preponderance of the evidence establishes that the Veteran did not have chronic hearing problems during service, within one year of separation from service, or for many years following service.   Any argument regarding continuity of symptomatology following service is inconsistent with the normal separation examination and the absence of evidence of hearing loss prior to October 1990.  In short, there is no reliable evidence linking post-service hearing loss disability to service.  

As the preponderance of the evidence is against the claim to service connection, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.    




____________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs