Citation Nr: 1751736	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  08-12 287	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Maxwell D. Kinman, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1976 to October 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In February 2008, the Veteran testified at an RO hearing before a Decision Review Officer. A transcript of the hearing has been associated with the Veteran's claims folder.

The Board has previously considered this claim. In a November 2011 decision, the Board reopened the Veteran's previous claim for service connection for left ear hearing loss and denied the claim on the merits. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in a March 2013 single-judge Memorandum Decision, the Court set aside that part of the Board's decision that denied the claim and remanded the claim to the Board for further development and adjudication. The Board notes that, in the interim, it appears that the Veteran filed another request to reopen his claim for service connection for bilateral hearing loss at the RO; in connection with that claim the RO scheduled the Veteran for a VA audiological examination, which took place in May 2013. Thereafter, in a May 2013 rating decision, the RO again found that new and material evidence had not been received to reopen the claim for service connection for bilateral hearing loss. However, as noted above, the issue of service connection for left ear hearing loss remains on appeal to the Board.  

In May 2017, the Board referred the Veteran's claim for an expert medical opinion by a Veterans Health Administration (VHA) audiologist. See 38 U.S.C. § 7109 (2012); 38 C.F.R. § 20.901 (2017).The VHA audiologist provided an opinion in July 2017. In July 2017, VA referred the opinion letter to the Veteran and his representative for review and allowed 60 days for the submission of any additional evidence or argument. The Veteran's representative provided a statement in response to the VHA opinion, the 60 day period has now elapsed, and a copy of the VHA letter and the representative's response has been associated with the claims file.


FINDINGS OF FACT

Left ear hearing loss is not etiologically related to service.


CONCLUSION OF LAW

Left ear hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In keeping with the Board's finding, the Board notes that the Veteran's representative argues that the VHA audiological opinion is inadequate for adjudication. The Veteran's representative first argues that the examiner failed to account for the Veteran's lay statements that since leaving service the Veteran's hearing loss continued to worsen. As discussed below, the Board finds that the Veteran's lay statements that he experienced hearing loss since service is not credible. The Veteran's representative also argues that the VHA examiner's opinion which found no significant threshold shift not factual because the Veteran had a threshold shift of 10 decibels at 500 hertz and a 5 decibel shift at 6000 hertz. The Veteran's representative argues that such a shift is significant because numerous other government agencies would define the Veteran's hearing changes as a significant threshold shift. The Board notes that the Veteran's representative cited to what appears to be an OSHA website as an example.  However, VA audiologists who presumably have the requisite expertise and skill in the area of determining significant threshold shifts in hearing, did not find any shift in this specific case to be significant.  Therefore, the Board finds the VHA opinion adequate. 

II. Service Connection for Left Ear Hearing Loss

In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2011). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these 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 (2017).

Section 3.385 of Title 38, Code of Federal Regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157.

In addition, certain chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in or aggravated by service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. "§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

Service treatment records are negative for any complaints, treatment, or diagnoses related to hearing loss. The Veteran underwent an enlistment examination in June 1976. Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
NR
0
LEFT
5
5
0
NR
0

The Veteran underwent additional audiometric testing in January 1977. Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
		5
5
0
NR
0
LEFT
5
5
0
NR
0

The Veteran underwent a separation examination in September 1980. Puretone thresholds, in decibels, were as follows:




HERTZ



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

In a private treatment record in early September 2003, the Veteran had an annual history and physical examination. The Veteran's physician found that the Veteran's hearing appeared to be grossly intact bilaterally. 

Private treatment records from November 2003 show that the Veteran complained of hearing loss that began in September 2003. The Veteran stated that felt as though he lost hearing in his left ear. The Veteran reported that he never had a past experience like his current condition, but he did note that 10 years prior he had had two episodes of bilateral hearing loss that each lasted several days, but were resolved with penicillin. He reported he had no incidents of hearing loss until his present complaint. 

Private treatment records dated December 2003 reflect findings of sudden left ear hearing loss in September 2003, with additional symptoms of vertigo and emesis.  The treating audiologist indicated a tentative diagnosis of viral or ischemic assault on the left ear, with possible benign paroxysmal positional vertigo.

VA treatment records dated February 2007 show the Veteran reported being deaf in his left ear due to an infection that attacked his inner ear in 2003. On examination, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
10
15
LEFT
105
105+
105+
105+
105+

Speech audiometry revealed speech recognition ability of 100 percent in the right ear. No score was recorded for the left ear. The treating physician indicated normal hearing in the right ear and profound sensorineural hearing loss in the left ear.

The Veteran underwent a VA audiological examination in May 2013. On examination the puretone thresholds, in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
20
50
5
LEFT
105+
105+
105+
105+
105+

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 0 percent in the left ear. The examiner found that the Veteran had sensorineural hearing loss in the left ear. The examiner found that the Veteran's hearing loss is less likely than not caused by or the result of an event in military service. The examiner reasoned that the Veteran had normal hearing in audiograms in March 1976 and September 1980.

The Veteran underwent another VA audiological examination in July 2016. On 

examination the puretone thresholds, in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
30
50
50
LEFT
100+
100
105+
105+
105+

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 0 percent in the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss in the left ear. The examiner found no permanent threshold shift greater than normal measurement variability between 500 and 6000 hertz in the left ear. The examiner opined that the Veteran's hearing loss is less likely than not the caused by or the result of an event in military service. The examiner reasoned that the Veteran's military entrance and separation hearing examinations indicated that there was no significant changes in hearing thresholds for either ear during military service that would be consistent with noise exposure. The examiner noted that there is no evidence of a noise injury during military service. The examiner further reasoned that medical research, including a study by the Institute of Medicine, does not support a delayed onset of hearing loss due to noise exposure.

As noted above, VA obtained a VHA audiological opinion in May 2017. The audiologist opined that it is less likely than not that the Veteran's left ear hearing loss had its onset in-service. The examiner reasoned that the Veteran's in-service examinations noted hearing levels within normal limits and revealed no significant threshold shifts from entrance to exit. Addressing the Veteran's statement that he had delayed onset hearing loss due to military exposure, the examiner noted that delayed onset due to noise exposure is not consistent with research and textbooks regarding noise-induced hearing loss. The audiologist further explained that research studies show that hazardous noise exposure has an immediate effect on hearing and does not have delayed onset nor is it progressive or cumulative. The audiologist further opined that it is less likely than not that the Veteran's sudden left ear hearing loss was caused by a viral or ischemic assault post military service. The audiologist reasoned that the Veteran was discharged in 1980 but was not diagnosed with sudden hearing loss until 2003-2007, 30 years after service. The time frame, in and of itself, between military noise exposure and onset of sudden left ear hearing loss rules out military exposure as being related to the Veteran's hearing loss. The examiner further reasoned that a vestibular assault to the ear would occur in tandem with the symptoms and onset of the sudden loss and it would be caused by an event of some sort closer to 2003-2007; the time frame in which the sudden left ear hearing loss reportedly developed. 

Since June 2003, the Veteran consistently stated that he was exposed to mortar fire noise while in-service and that he has had hearing difficulties. The Veteran submitted a December 2006 statement in which he indicated that his left ear hearing loss was due to a lack of medical care. 

The Veteran also testified at an RO hearing in February 2008. He reported noise exposure to mortars during service. He did not use any hearing protection. He experienced temporary hearing loss bilaterally after being out in the field and exposed to mortar noise. He was told at the time of his discharge that while his hearing loss was not significant, there were signs that he would eventually go deaf.  He currently had severe hearing problems with his left ear which began in September 2003.

The Board finds the Veteran's statement that experienced temporary hearing loss bilaterally after exposure to mortars during service competent; however, the Board does not find any assertions of continued hearing loss since then to be competent and credible. When the Veteran first reported his left ear hearing loss to his private physician in 2003 for treatment purposes the Veteran stated that he only ever experienced two episodes of bilateral hearing loss that each lasted several days 10 years earlier and that such episodes were resolved with penicillin. He reported he had no incidents of hearing loss until his present complaint. This statement made for treatment purposes contradicts his more recent assertion that he has had hearing loss since in-service, therefore his statements to the contrary are not credible. Further, the Veteran's statement that he was told on separation that he would be deaf one day is competent; however the statement itself is not credible. As noted above, the VA examiner from the July 2016 VA examination and the VHA audiologist both cited medical literature which does not support a theory of delayed onset of hearing loss due to noise exposure and both indicated that not only was the Veteran's hearing loss within normal limits at separation, there was no significant threshold shift shown in service. Therefore, the statement to the Veteran that he would lose his ability to hear one day is essentially not supported by the contemporaneous record on separation which did not show hearing loss, and therefore, of no probative weight. 

As noted above, the Veteran's representative stated that that the VHA opinion does address that Veteran's lay statements that he experienced hearing loss since service. However, as noted the Veteran's statement that he had hearing loss since service is not credible and therefore further development would be inappropriate. Further, the VHA examiner clearly indicated that there was no objective evidence of hearing loss in service or for many years, and the Veteran's sudden onset of left ear hearing loss would occur in tandem with a vestibular assault to the ear caused by some event closer to the 2003-2007 timeframe.  The examiner further found that any report of delayed onset of hearing loss due to military service to be inconsistent with research and textbooks regarding noise-induced hearing loss.

The Board finds that the Veteran has a left ear hearing loss disability. The Board finds that the Veteran was exposed to hazardous noise levels in-service. However, the Board finds that there is no nexus between the Veteran's current left ear hearing loss and his exposure to hazardous noise because the most probative evidence is the VHA opinion that the Veteran's hearing loss is less likely than not related to service. Further, the July 2016 examiner and the VHA examiner found that the Veteran's in-service threshold shift was within normal variability. The Board also notes that objective evidence of hearing loss in the left ear did present itself until September 2003, over twenty years after leaving service.  

Essentially, there is no competent and credible evidence of a bilateral sensorineural hearing loss in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1339. No examiner in-service, or since, has established chronicity or an underlying chronic disease process in service. Characteristic manifestations sufficient to identify the disease (left ear sensorineural hearing loss) entity were not noted. Here, the weight of the probative evidence of record simply fails to demonstrate an in-service incurrence of hearing loss or that the Veteran's hearing loss became manifest to any degree within one year of separation from service. As noted, continuity of symptomatology is required where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. However, because hearing loss was not present or noted in service, the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology are not applicable in this case.  Further, even if the Board were to find the Veteran's subjective report of episodes of temporary hearing loss in service to be competent and credible, and sufficient to establish a "condition noted in service", the Board does not find his assertions of continuity of symptomatology since that time to be credible for the reasons outlined above.

The claim of entitlement to service connection for left ear hearing loss disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER


Service connection for left ear hearing loss is denied. 




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs