Citation Nr: 1751973 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-34 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1975 to September 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record on appeal. In August 2016, the Board remanded this matter for development and it now returns for further appellate review. FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current diagnosis of a left ear hearing loss disability for VA purposes, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. 2. Right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). While the Veteran has made vague challenges as to the competence and impartiality of VA employees generally and asserts faulty equipment was used by the VA examiners, which will be discussed in detail herein, he has not otherwise alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Analysis The Veteran contends that he has bilateral hearing loss as a result of his acknowledged in-service exposure to artillery noise. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service or when evidence establishes a disease diagnosed after discharge was incurred in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic disabilities (including sensorineural hearing loss) are presumed to have been incurred in service if (a) manifest to compensable degree within one year of discharge from service; (b) there is evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or (c) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above 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. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service, even if the disability first manifests after service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992); Hensley v. Brown, 5 Vet. App. 155, 157-59 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the probative evidence reflects that the Veteran does not have a current left ear hearing loss disability as defined by 38 C.F.R. § 3.385. In this regard, the Veteran was afforded VA examinations in September 2010 and May 2017. Audiometric testing performed as part of the 2010 examination showed pure tone thresholds of 20, 15, 15, 15, and 25 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech discrimination in the left ear was 100 percent. Thereafter, in conjunction with audiometric testing performed during the May 2017 examination, the Veteran demonstrated pure tone thresholds of 35, 25, 15, 20, and 25 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech discrimination in the left ear was 100 percent. While the record also contains a November 2011 opinion from Dr. A.R. in which he states the Veteran has chronic hearing loss, such was not accompanied by any medical evidence to support a finding of a current left ear hearing loss disability as defined by VA regulations. To the contrary, Dr. A.R. specifically noted that audiometric testing was not performed in conjunction with his examination of the Veteran. As such, the opinion is not probative as to the presence of a current disability of left ear hearing loss as defined by VA regulations, which specifically requires audiometric and speech discrimination testing. Furthermore, while a December 2011 record indicates that audiological testing revealed that the Veteran was only able to hear at 2000 Hertz, the underlying audiogram is not of record. Moreover, such a finding is unsupported by the remaining audiometric findings of record as such demonstrate that, while the Veteran has impaired hearing, he is indeed able to hear at all tested frequencies. Consequently, the December 2011 notation is accorded no probative weight. To the extent the Veteran and his spouse believe that he suffers from a current left ear hearing loss disability, as lay persons, they have not shown that they have specialized training sufficient to render such opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, diagnosing and determining the presence of hearing loss as defined by VA regulations requires conducting objective audiological testing. Accordingly, the Veteran and his spouse's statements as to whether he has a current diagnosis of left ear hearing loss as defined by VA regulations are not competent. As such, the Board finds the objective audiological testing conducted during the September 2009 and May 2017 VA examinations is of greater probative value than the lay contentions in this regard. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of a current left ear hearing loss disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Specifically, as the findings on the September 2009 and May 2017 VA examinations reflect left ear hearing levels that do not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385, and there is no other competent evidence of record showing the presence of such at any time in proximity to the Veteran's current claim, the Board finds that, at no time during the pendency of the claim does the Veteran have a current diagnosis of a left ear hearing loss disability for VA purposes, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. Consequently, his claim for service connection for left ear hearing loss must be denied. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Turning to the Veteran's right ear, he contends that his currently diagnosed hearing loss (see 38 C.F.R. § 3.385; May 2017 VA audiological examination) was caused by his acknowledged in-service exposure to artillery noise. He further reports that he immediately recognized a hearing disability during service that has continued since that time. His spouse also reports that the Veteran had hearing loss when she met him in 1982 that became progressively worse over time. Although the Veteran is competent to report experiencing diminished hearing acuity during and since service, and his spouse is competent to report what she has observed, they do not have specialized training sufficient to render an opinion as to the etiology of the Veteran's right ear hearing loss. See Jandreau, supra. In this regard, knowledge of the basis for a decrease in hearing acuity involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Additionally, whether the symptoms the Veteran experienced in service or following service are in any way related to his later diagnosed right ear hearing loss is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("[a]lthough the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with"); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Consequently, the lay statements as to the etiology of the Veteran's right ear hearing loss are afforded no probative weight. As noted above, while the record contains an opinion from Dr. A.R. that the Veteran's right ear hearing loss is related to his in-service noise exposure, such opinion is not supported by any rationale. Consequently, it is afforded no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Therefore, as there was no probative opinion addressing the etiology of the Veteran's right ear hearing loss, to include whether such is related to his in-service exposure to artillery fire and howitzer guns, the Board remanded the claim in August 2016 in order to obtain such an opinion. Specifically, at such time, the Board directed that the VA examiner accept the Veteran's reports of experiencing decreased hearing acuity after noise exposure in service, with persistent symptomatology both during service and after his separation. In May 2017, after reviewing the record, including Dr. A.R.'s opinion, the examiner, an audiologist, opined that it was less likely than not that the Veteran's right ear hearing loss was related to his in-service noise exposure. In rendering such opinion, he accepted as credible and reliable the Veteran's lay statements regarding his in-service exposure and symptomatology after service. However, the examiner reviewed in-service and post-service audiograms and noted there was no significant threshold shift in the Veteran's hearing acuity to establish the presence of in-service acoustic trauma. In this regard, the examiner noted that "one critical issue for determining hearing loss...related to noise exposure while in service is..." the presence of an in-service threshold shift. In the Veteran's case, while his records demonstrated a 45 decibel shift in the left ear during service, subsequent testing indicated this was a temporary threshold shift. Further, the examiner noted that audiometric testing is based on behavioral measurements and, as such, always involve some level of variability. Thus, even where a threshold shift is demonstrated, such does not automatically indicate acoustic trauma. Turning to the Veteran's reports of progressively worsening hearing after service, the examiner acknowledged that hearing loss may progress due to a variety of factors, but there is no evidence that there are delayed threshold changes following a short period of time after exposure to noise. In short, the examiner conceded noise exposure in service, but found there was no noise injury while in service. In further support of his position, the examiner noted a 2006 Institute of Medicine study which found there was not sufficient evidence to determine that permanent noise-induced hearing loss develops long after the cessation of the noise itself. The Board finds that the opinion of the May 2017 VA examiner, provided after interviewing and examining the Veteran, and reviewing the record and pertinent medical literature, is highly probative as it reflects consideration of all relevant facts and the examiner provided a detailed rationale for the conclusion reached. See Nieves-Rodriguez, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As discussed previously, as the Board accords the Veteran's lay statements and Dr. A.R.'s opinion as to the etiology of his right ear hearing loss no probative weight, the May 2017 VA examiner's opinion is the only probative evidence addressing such matter. The Board acknowledges that the Veteran has made vague statements that could be construed as challenging the validity of his examinations or any work performed by government employees in general. For instance, he reported at the April 2016 Board hearing that VA used outdated equipment. However, a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is only rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). The Veteran has not provided clear evidence to rebut the presumption of regularity. Instead, he claims VA used inadequate equipment and that the equipment used by his private provider was much better. Further, as the Veteran has not demonstrated that the VA examiners were unaware of any significant fact in his case or introduced any evidence that shows a lack of impartiality or incompetence, the Veteran has not met his burden to show that the VA examinations are inadequate and the Board finds his arguments in this regard to be unpersuasive. Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). In summary, the Board finds that at no time during the pendency of the claim does the Veteran have a current diagnosis of a left ear hearing loss disability for VA purposes, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. Furthermore, the Board finds that right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. Therefore, service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable to his claim and it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs