Citation Nr: 1752231 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-06 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1966 to April 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2012 rating decision in which the RO in Jackson, Mississippi denied service connection for bilateral hearing loss and tinnitus. The Veteran timely appealed. In November 2015, RO granted service connection for tinnitus. As this was a complete grant of the benefit sought, and this issue is no longer on appeal. Holland v. Gober, 10 Vet. App. 433, 436 (1997) (an RO's award of service connection constitutes a full award of benefits on an appeal initiated by an NOD as to a previous RO decision denying service connection; to the extent that a veteran disagrees with the compensation level or effective date assigned in the RO decision granting service connection, "a separate NOD [is required] in order for them to be placed in appellate status for the first time."). In March 2017, the Veteran had a Board hearing before the undersigned Veterans Law Judge at the local RO. A hearing transcript is of record. FINDINGS OF FACT 1. The Veteran has provided competent and credible reports of military noise exposure. 2. Right ear hearing loss was noted at entrance into active military service. 3. The weight of the evidence indicates that right ear hearing loss was not aggravated by military noise exposure. 4. The current left ear hearing loss has not been shown to have had its onset in service or within one year of service, nor is such disability shown to be related to active military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(b), 3.306, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The record reflects that the RO provided the Veteran with the requisite notice in September 2011, prior to the initial rating decision. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A (c)(2). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue herein decided has been obtained in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs) have been associated with the claims file. All identified and available post-service treatment records pertaining to audiological treatment have been obtained. The Veteran was afforded audiological examinations in September 2012 and October 2015. As explained below, the September 2012 VA medical opinion is inadequate, but the October 2015 is adequate and probative. The Board notes that the October 2015 VA examiner found preexisting hearing loss in both ears and provided opinions as to direct service connection and aggravation for each ear. However, reading the examination report in its entirety, it is clear that the examiner opined that the evidence weighed against a nexus between the current bilateral hearing loss and military service as well as a lack of aggravation of the preexisting right ear loss, and that is sufficient to decide the claim, for the reasons indicated below. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Notably, the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection, nor does normal hearing shown on audiometric testing at separation bar service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that 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. See 38 C.F.R. § 3.303(d). Service connection may also be granted for listed chronic diseases when the disease is 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, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With respect to hearing loss claims, organic diseases of the nervous system are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. See also VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (Mar. 2, 2017) (noting that Compensation Service has determined that sensorineural hearing loss constitutes an organic disease of the nervous system). 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz 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. As relevant, right ear hearing loss was specifically noted as a defect at entrance into service. See March 1966 audiogram. The Board notes that service department audiometric tests prior to October 31, 1967 were in ASA (American Standard Association) units, and require conversion to ISO (International Organization for Standardization) units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. Conversion to ISO units is accomplished by adding 15 dB to the ASA units at 500 Hertz, 10 dB to the ASA units at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 dB to the ASA units at 4000 Hz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. The March 1966 audiogram reflects VA defined hearing loss in the right ear when converted from ASA to ISO-ANSI hearing acuity metrics as reported below. 38 C.F.R. § 3.385; McKinney v. McDonald, 28 Vet. App. 15 (2016) (VA must employ 38 C.F.R. § 3.385 standards in determining a preexisting hearing loss disability). Based on these audiometric scores, and the clinician's identification of right ear hearing loss as a defect from the contemporaneous audiogram, the Veteran is not presumed sound with respect to right ear hearing. The claim for service connection for right ear hearing loss must thus be considered on an aggravation basis. 38 C.F.R. §§ 3.304(b), 3.306. A pre-existing injury or disease is considered to have been aggravated by active service if there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). However, aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). Service treatment records (STRs) include three audiograms. As noted above, these audiograms were presumed to be recorded using ASA units. The Board will adjust the audiometric data originally recorded using ASA standards to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 add 15 10 10 10 5 The adjusted ISO-ANSI converted December 1965 audiogram, which is on an entrance examination report, and the reads as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 10 10 LEFT 15 15 20 10 10 The adjusted ISO-ANSI converted March 1966 audiogram, which appears later on the same examination report, reads as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 25 30 25 LEFT 20 15 15 30 30 Again, based upon the March 1966 audiogram, the examiner listed partial hearing loss for the right ear as a defect. Notably, the converted ISO-ANSI audiogram showed right ear hearing loss within 38 C.F.R. § 3.385. See McKinney, supra. The adjusted ISO-ANSI converted April 1967 separation audiogram reads as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 15 LEFT 15 10 10 15 15 In September 2012, the Veteran was afforded a VA audiology examination. The examiner performed an audiogram and diagnosed bilateral sensorineural hearing loss. She provided a negative medical opinion and cited post service noise exposure as a factor. Since the Veteran disputes the incidence of post service noise exposure, the Board will disregard the September 2012 VA medical opinion. November 2012 VA primary records show that the Veteran reported a long history for left ear hearing loss. The clinician assessed left ear hearing loss and referred the Veteran to the audiology clinic. He reported that both ears were checked and were clear of cerumen. January 2013 VA treatment records reflect that the Veteran had a consultation at the ear, nose and throat (ENT) clinic for asymmetrical hearing loss with the left ear being worse than the right ear. The Veteran reported a hearing loss history of 12 or more years and history for military noise exposure. The clinician examined him and obtained a magnetic resonance imaging (MRI) study of the head. He diagnosed asymmetrical hearing loss without evidence of retrocochlear pathology. He recommended hearing aids. In his February 2013 notice of disagreement (NOD), the Veteran pointed out the STRs audiogram suggesting his hearing improved and was concerned about this unusual finding. He asserted that he had a continuity of symptomatology for hearing loss beginning in service. In June 2015, the Veteran's wife reported that the Veteran had had hearing loss since 1967 and it had become progressively worse. She reported that the Veteran sought medical treatment for it many years ago and was told that nothing could be done, except for hearing aids. In October 2015, the Veteran was afforded a VA audiology examination with review of the claims folder. The examiner noted audiograms found in the STRs and that comparison of the March 1966 and April 1967 audiograms showed hearing improvement. An audiogram was taken and Maryland CNC speech discrimination scores were recorded. The examiner diagnosed bilateral sensorineural hearing loss. For the right ear, the VA examiner provided a negative opinion. She cited the normal hearing shown on the April 1967 separation audiogram with no significant threshold shift when compared to the March 1966 audiogram. She explained that the audiogram was the objective standard for noise injury. Because the Veteran's hearing was normal at separation with no significant shift threshold shifts, there was no evidence that military noise exposure caused a permanent noise injury affecting hearing sensitivity. She also reported that it was less likely the current right ear hearing loss was permanently aggravated by military noise exposure. For the left ear, the VA examiner provided a negative opinion. She again cited the STR audiogram indicating no significant hearing acuity threshold shift and the audiogram being the objective standard for noise injury. In December 2015, the Veteran reported that he had in-service acoustic trauma from working near the flight line at an Air Force base. He reported that service audiograms showed his hearing had worsened. In March 2017, the Veteran was afforded a Board hearing. He reported having military noise exposure and that his separation examination noted hearing loss. He denied being aware of any preexisting hearing loss at entrance into service and having any significant incidence of noise exposure following service. Based upon the evidence above, the Veteran contends that service connection for bilateral hearing loss is warranted. The record supports a finding that the Veteran had military noise exposure. The current audiograms confirm bilateral hearing loss. The issue in dispute is a nexus to military noise exposure. In this case, the October 2015 VA examiner's opinion is probative medical evidence weighing against a nexus to military noise exposure (as noted, the Board will not consider the September 2012 VA opinion since the examiner listed post service noise exposure as a factor and the Veteran has denied it.) The October 2015 VA examiner explains that the audiogram is the objective standard for measuring noise injury. She cites the normal separation audiogram without any significant threshold shifts as the reason for her negative opinions regarding aggravation of right ear hearing loss and a nexus for left ear hearing loss. The October 2015 VA medical opinions are based upon scientific review of the Veteran's medical history, clinical interview and audiological examination of the Veteran. They contain a plausible supporting explanation for the opinion based on an accurate characterization of the evidence of record. For these reasons, the Board places significant weight on the October 2015 VA examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The evidence in support of a nexus consists of the Veteran's reports and a June 2015 report from his wife. The Veteran and his wife are competent to report on hearing loss symptoms and their recollections of such symptoms. Jandreau, 492 F.3d at 1377. However, their reports of aggravation in right ear hearing loss and manifestation of left ear hearing loss during military service conflict with the April 1967 audiogram. Moreover, the issue of whether the current hearing loss is related to military noise exposure in the context of medical evidence indicating normal hearing at separation is a complex medical question relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Due to the Veteran and his wife's status as lay witnesses, their reports are not competent on this particular issue and have no probative value. The Board has also considered the chronic disease and continuity of symptomatology provisions for left ear hearing loss. Here, chronic disease was not noted in service or within the first post-service year. 38 C.F.R. §§ 3.307, 3.309. To the extent the Veteran has asserted a continuity of symptomatology, the Board finds the April 1967 audiogram and specific, reasoned October 2015 medical opinion above to be of greater probative weight than the more general lay assertions regarding left ear hearing loss. Caluza, 7 Vet. App. at 511. The Veteran's statements regarding hearing loss and noise exposure, which are competent and credible, were considered in the above noted VA medical opinion. The April 1967 audiogram showing normal hearing for both ears at separation directly conflicts with a continuity of symptomatology. In the absence of any explanation to the contrary, the April 1967 audiogram strongly suggestive that symptoms of left ear hearing loss was not present during service or that there were such symptoms within the one year presumptive period that were early manifestations of the subsequently diagnosed left ear hearing loss. Id. The Board notes the Veteran's concern about improvement in bilateral hearing acuity when comparing the March 1966 and April 1967 audiograms. There are no clinician comments in the service as to this discrepancy. The October 2015 VA examiner did not indicate that this discrepancy is suggestive of a testing irregularity in either audiogram. In this case, the evidence of improvement in hearing acuity, alone, is not sufficient to find that any of the service audiograms without any clinical report suggestive of invalidity or unreliability of either audiogram. Id. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs