Citation Nr: 1751782 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-17 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bilateral hearing loss REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. Jobe, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Navy from March 1961 through January of 1965. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, declining to reopen the Veteran's claims of entitlement to service connection for tinnitus and bilateral hearing loss for failure to submit new and material evidence . The claim of entitlement to service connection for tinnitus was subsequently granted in an August 2016 rating decision. In August 2016, the Board reopened the issue of entitlement to service connection for bilateral hearing loss, as new and material evidence had been submitted. The Board subsequently remanded the issue of entitlement to service connection for bilateral hearing loss for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (West 2014). FINDING OF FACT The Veteran's bilateral hearing loss was not incurred in or otherwise related to active duty service, and it is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 CFR §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 and 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. DUTY TO ASSIST AND NOTIFY VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed Cir. 2015). II. SERVICE CONNECTION - HEARING LOSS The Veteran has claimed entitlement to service connection for bilateral hearing loss. He contends that he incurred disability as a result of airplane engine noises that he was exposed to before and during flights. The Veteran served as an aviation electronics technician as well as a radioman. 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. Service connection may also be warranted where a service-connected disability caused or worsened the injury. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (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, or nexus, 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). Service connection may also be granted for chronic disabilities, such as sensorineural hearing loss, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such instances, service connection for sensorineural hearing loss may be established based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as sensorineural hearing loss). The Veteran contends that he is entitled to service connection for bilateral hearing loss. After a thorough review of the evidence, the Board finds that the Veteran's disability was not incurred or related to, otherwise aggravated by active service or his service connected ear condition. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2017). Post-service medical records, current audiograms from Kaiser Permanente, as well as the January 2017 VA examination, support significant hearing loss in both ears, and clearance for hearing aids. According to the January 2017 VA examination report, the authorized audiological evaluation revealed pure tone thresholds, in decibels, to be: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 90 95 95 LEFT 30 45 70 95 100 Pure tone threshold averages were 83.75 dB for the right ear and 77.5 dB for the left ear. Speech audiometry revealed speech recognition ability of 58 percent in the right ear and of 78 percent in the left ear. As such, the Veteran clearly suffers from a current hearing loss disability for VA purposes. See id. Noise exposure is consistent with the Veteran's service as an aviation electronics technician. Therefore, the Board of Veterans' Appeals concedes in-service noise exposure, and the in-service element is met. However, there is no competent evidence showing that the Veteran's current hearing loss was at least likely as not incurred in or caused by the in-service noise-exposure, nor is it at least likely as not to have been proximately due to the service-connected ear cysts disability (nexus). In finding the nexus element lacking the Board considered service treatment records, current medical records, lay testimony, and opinion statements. In May 1962, audiometric testing was normal. The following year the Veteran noted ear problems. The impairment was noted to be cyst formation in ears, and surgery was performed. The Veteran was service connected for the cyst formation with an effective date of September 1968, three years after his honorable discharge. The Board notes that an audiometric evaluation was not performed as part of the Veteran's January 1965 separation examination. A whisper test was deemed to be normal, bilaterally, but this type of testing is of little to no probative value. The Veteran began treatment with a physician with the initials G.S. in August 1968. The Veteran had complained of hearing loss, specifically in the right ear. Dr. G.S. noted swollen canals, and a possible incision cyst. The Veteran was treated with irrigation, and a solution; significant improvement was noted. In October 1968, despite not performing an audiogram, Dr. G.S. "doubted significant hearing loss." VA examiners in December 1968, as well as May 1970, noted asymptomatic cysts, flare-ups, and no hearing problems. Records from Kaiser Permanente in May of 1985 are the first documentation supporting hearing loss. In the audiogram, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 40 N/A 55 LEFT 50 55 55 N/A 70 Therefore, the Veteran was clearly suffering from hearing loss for VA purposes as of this time. See 38 C.F.R. § 3.385. However, none of the records suggested any relation between this hearing loss and the Veteran's military service several decades earlier. In connection to his July 2005 original claim for service connected hearing loss (in which the Veteran reported that his hearing loss began in January 1963), the Veteran underwent a VA audiometric examination in January 2006. The examiner found that the bilateral hearing loss was not etiologically connected to the Veteran's active service. No clear etiology was provided other than noting the lack of a diagnosis for 15 years. Furthermore, this examiner did not identify whether the Veteran's hearing loss was aggravated by his service-connected cystic development. The Board recognizes that when considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). While this evidence has been considered, the Board recognizes that a lack of medical evidence alone is an insufficient rationale to deny a claim of entitlement to service connection for hearing loss. As mentioned above, the third element of service connection requires competent evidence of a nexus between the current disorder and the in-service disease or injury. It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board is required to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In January 2017, the VA examiner, after full record review and examination of the Veteran found, that the hearing loss was less likely than not caused by or a result of an event in military service. Specifically, the examiner noted that the hearing loss developed well after separation of service, which had been noted on prior rating decisions. In addition, the veteran is noted to have significant post-service noise exposure from employment as a Machinist and Senior Engineering Associate at a laboratory. The VA examiner further opined that hearing loss was less likely than not due to or the result of the service connected cyst condition. Specifically, the Veteran suffers from sensorineural hearing loss (SNHL), and that surgical procedures on the Veteran's ears during service have resulted in ear canals that are significantly narrower than would otherwise be expected. The Veteran should be fitted with proper custom ear tips and hearing aids to avoid any conductive loss contribution to his hearing status, and this is strongly recommended, by the examiner. She further explained that sensorineural hearing loss values are not affected by the narrowing of his ear canals. Therefore, SNHL is not related to military service given the lack of hearing problems at the time of discharge, and the post-discharge employment which exposed the Veteran to high volumes of loud noise for extended periods that it is more likely than not that these jobs caused the Veteran's bilateral hearing loss. Finally, the VA examiner opined that Veteran's hearing loss was not aggravated by a service-connected disability. Specifically, the examiner noted the Veteran's SNHL was not affected by the cyst surgeries during service, and that there was no evidence that it developed during service or within a year post-service; whereas, his post-service employment was highly probable for hazardous noise levels. The Board of Veterans' Appeals has considered the lay testimony from the Veteran. He notes that his hearing problems began in 1963 with the cyst formation when surgery was performed. He complains that due to his ears being compressed in a headset 8 to 12 hours a day that the small cysts would break and leak on occasion. The Veteran's wife, in a July 2010 statement, also notes significant hearing issues and a worsening over the years. In a March 2011 statement, the Veteran said that the aircraft he flew in-service was noted to have caused hearing loss in numerous personnel. In April 2017, the Veteran reiterated the above statement again. However, the fact that other individuals suffered hearing loss due to aircraft noise exposure does not in and of itself demonstrate that the current Veteran did as well. As previously discussed the competent medical evidence of record suggests otherwise. The Veteran is competent to state he experiences hearing loss. However, there is no evidence that he has the necessary knowledge, skill and training to render an opinion as to the etiology of his hearing loss. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). In addition, the Veteran's witness, his wife, only married well after discharge from service; therefore, she lacks the necessary credibility or exposure to assess a causal relationship. Moreover, the only competent evidence of record weighs against the Veteran's claim. Whereas, the VA examiner is both competent and credible, and after reviewing the full file and examination, this opinion deserves more weight. There are no positive nexus opinions of record. Therefore, the third element for service connection of the Veteran's bilateral hearing loss remains unmet. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for bilateral hearing loss must be denied. ORDER Entitlement to service connection for bilateral hearing loss, to include as secondary to a service-connected disability, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs