Citation Nr: 1752391	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  11-09 156	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for left ear hearing loss disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Chad Johnson, Counsel



INTRODUCTION

The Veteran had active service from March 1966 to March 1968.  

This matter comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

This matter was previously remanded by the Board in April 2014 and April 2017 for additional development, specifically, to include obtaining any outstanding Social Security Administration (SSA) disability records and to afford the Veteran an adequate VA examination.  A May 2014 SSA response indicated that the requested records had been destroyed, and the Veteran was afforded a VA audiological examination in May 2017.  As such, the Board finds there has been substantial compliance with prior remand directives; therefore, the matter is properly returned to the Board for adjudication.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999).  


FINDING OF FACT

The Veteran's left ear hearing loss disability did not have its onset during active service or within one year of service discharge, and is not otherwise related to active service, to include in-service noise exposure.  


CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).  




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process  

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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).  

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).  

II.  Service Connection - Left Ear Hearing Loss  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110 (2012); 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 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  
For certain chronic disorders, including sensorineural hearing loss, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge.  38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).  Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Even where service connection cannot be presumed, service connection may still be established on a direct basis.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria.  38 C.F.R. § 3.385 (2017).  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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 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.  Id.  

Service treatment records do not document any complaints, treatment, or diagnosis of left ear hearing loss.  Audiology examinations upon service enlistment and service discharge do not document left ear hearing loss per VA regulation, or puretone threshold results documenting a threshold shift.  However, the Veteran's DD Form 214 documents his military occupational specialty (MOS) as light weapons infantry; therefore, VA has conceded that he was likely exposed to hazardous noise during active service.  

Although the evidence of record fails to indicate any hearing loss within the relevant auditory thresholds during service, the Board notes that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Competent evidence of a current hearing loss disability 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.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Post-service private treatment records include annual audiology examinations provided by the Veteran's employer beginning in May 1981 through January 1997; significantly, however, such records do not document a left ear hearing loss disability with onset at any time through January 1997.  See 38 C.F.R. § 3.385.  As such, presumptive service connection for left ear hearing loss is not warranted.  See 38 C.F.R. § 3.309(a).  However, given a February 2010 VA examination report that documents a current left ear hearing loss disability consistent with VA regulation, the Board has considered the Veteran's claim on a direct basis below.  

Upon VA audiology examination in February 2010, the Veteran reported in-service noise exposure from his light weapons infantry MOS and training with mortars, as well as post-service noise exposure due to employment as a carpenter, coal miner, and bulldozer operator.  Following an audiology examination, the VA examiner opined that the Veteran's left ear hearing loss was less likely as not a result of military noise exposure because service treatment records documented normal hearing despite an MOS with high risk of noise exposure.  Additionally, the examiner noted that the Veteran's post-military noise exposure may account for his hearing loss.  

Following the April 2017 Board remand which determined the February 2010 VA opinion was inadequate given its rationale based upon an absence of in-service evidence of hearing loss, the Veteran was afforded an additional VA examination in May 2017.  At that time, the VA examiner again documented a current left ear hearing loss disability but opined that the Veteran's left ear hearing loss was not at least as likely as not caused by or a result of an event during active service.  The examiner again noted that entrance and exit left ear hearing tests did not document any significant threshold shifts or left ear hearing loss, despite the Veteran's MOS, which is associated with high-risk noise exposure.  Additionally, the examiner noted that post-service private treatment records beginning in May 1981 documented a hearing test with normal left ear results, which showed that the Veteran's left ear hearing was normal thirteen years following separation from active service in March 1968.  The examiner then cited to a 2005 Institute of Medicine study which concluded, based on current knowledge of cochlear physiology, that there is insufficient scientific evidence for delayed-onset of hearing loss secondary to military noise exposure, that hearing loss should occur at the time of the exposure, and there is insufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop years after military noise exposure, but that the available anatomical and physiologic evidence suggests that delayed post exposure noise induced hearing loss is not likely.  As such, the examiner concluded that with normal hearing upon discharge and no significant threshold shift, there was no basis to conclude that a current hearing loss disability was causally related to military service, including noise exposure.  

The Board finds that the May 2017 VA opinion is entitled to significant probative weight as it was based upon a thorough examination and review of the claims file and acknowledged the Veteran's lay and military history.  Moreover, it is well-supported by a reasoned rationale which relied upon post-service private treatment records and related medical literature in addition to a lack of documented hearing loss within service treatment records.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Veteran's statements of record regarding his observable symptoms, such as hearing difficulty, are probative evidence, see Layno, 6 Vet. App. at 469; however, to the extent such statements attempt to diagnose hearing loss according to VA regulations, to include whether it was manifested to a compensable degree during active service or within the year subsequent to service discharge, such statements are of little probative value.  See Jandreau, 492 F.3d at 1376-77.  Notably, the diagnosis of a hearing loss disability for VA purposes is based on objective audiometric testing and is not simply determined based on mere personal observation by a layperson.  See 38 C.F.R. § 3.385.  Thus, the question of whether the Veteran has a hearing loss disability for VA purposes does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge in the field of audiology, including audiometric testing.  Similarly, to the extent that lay evidence of record asserts that the Veteran's current left ear hearing loss is etiologically related to his active service, to include conceded noise exposure, such statements are of little probative value, see Jandreau, supra.  Moreover, the additional evidence of record, including post-service private treatment records documenting normal audiological testing from May 1981 through January 1997 documents that left ear hearing loss first had onset many years after active service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

In conclusion, the most probative evidence of record weighs against the Veteran's claim of entitlement to service connection for left ear hearing loss.  As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for left ear hearing loss disability is denied.  




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs