Citation Nr: 1753389 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-32 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1994 to February 1997. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO in Los Angeles, California certified the case to the Board on appeal. The Veteran testified before the undersigned Veterans Law Judge during a March 2016 Travel Board hearing; a transcript is of record. The Board previously remanded this case for additional development in May 2016. In August 2016, the claim of entitlement to service connection for a right ankle disorder was granted. That was the full grant of that benefit. The claim of entitlement to service connection for bilateral hearing loss remained denied. That issue has been returned to the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. FINDING OF FACT The Veteran's bilateral sensorineural hearing loss did not manifest in service, within the one year presumptive period, or for many years thereafter, and is unrelated to any noise exposure or other event or occurrence during active duty. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. VA satisfied its duty to notify the Veteran pursuant to VCAA. 38 U.S.C. §5103 (2012); 38 C.F.R. § 3.159(b) (2017). VA provided the required notice in April 2009, prior to the initial adjudication and readjudication of the claim in a statement of the case (SOC). See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007) (VCAA notice must generally be provided prior to the initial rating decision). VA also satisfied its duty to assist the Veteran in developing his claim. 38 U.S.C. § 5103A (2012). In connection with the current appeal, VA has of record evidence including available service treatment records, VA treatment records, and a transcript of the Veteran's testimony at the March 2016 hearing. Further, in May 2016, the Board remanded the appeal for further development. Specifically, as to the claim of entitlement to service connection for bilateral hearing loss, the Board directed the AOJ to schedule a new VA examination for the Veteran because he indicated during his March 2016 hearing that his hearing had gotten worse since the last examination in 2011. In June 2016, the new examination was completed and it is now included in the Veteran's claims file. For reasons discussed in further detail below, the Board finds this examination adequate. Therefore, the above actions constitute substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). They also satisfy VA's duty to assist the Veteran. II. Service Connection The Veteran is seeking entitlement to service connection for bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012). Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The determination of whether a Veteran has a hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2017). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as bilateral sensorineural hearing loss, may be presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as sensorineural hearing loss 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. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's essential contention here is that he currently suffers from hearing loss related to his period of active duty. The Board acknowledges that the Veteran was exposed to acoustic trauma while serving as a wheeled vehicle repairer during his period of active duty. However, his audiometry examinations during service were normal and the January 2011 VA audiology examination yielded normal hearing as well. The Board acknowledges that in a June 2016 VA audiological examination, the Veteran was diagnosed with sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies) in his right ear and with sensorineural hearing loss (in the frequency range of 500 - 4000 Hz) in his left ear. Thus, the Veteran has a current disability of sensorineural hearing loss in his left ear for the purposes of C.F.R. § 3.385, but does not have a current disability of sensorineural hearing loss in his right ear since no frequencies between 500 and 4000 Hertz yielded more than 26 decibels and his speech recognition score of the right ear is 96 percent. Further, the Veteran's bilateral sensorineural hearing loss does not meet the nexus to service connection element required to grant an entitlement to disability compensation. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Review of the Veteran's Service Treatment Records (STRs) confirm that at the December 1993 entrance examination, pure tone threshold levels reveal no findings higher than 25 decibels at the frequencies of 500, 1000, 2000, and 4 000 Hertz. STRs reveal no complaints or treatments by the Veteran for hearing loss. At the August 1996 audiometry examination conducted 15 hours since last noise exposure, pure tone threshold levels reveal no findings higher than 15 decibels at the frequencies of 500, 1000, 2000, and 4000 Hertz. It is indicated that the Veteran was routinely exposed to hazardous noise. The Veteran entered and exited military service with normal hearing based on his induction examination and audiometry examinations in service. The medical examination records reveal no complaint of bilateral sensorineural hearing loss by the Veteran to a medical examiner during the entirety of his military service, nor within one year of discharge. The Veterans medical records reveal no evidence of any bilateral sensorineural hearing examination being performed on him since separation to January 2011. The Veteran was afforded a VA examination in January 2011. He reported that his hearing problems had existed for 10 years; he described current symptoms of intermittent ringing in both ears, for which he was not receiving any treatment. The Veteran reported that he did not experience any overall functional impairment from his hearing problems. The Veteran stated that he experienced recurrent and intermittent tinnitus for a long time, though he does not remember when or how it occurred. The Veteran reported that he fired weapons with his left hand, while he did not participate in combat activity. He did not use any hearing protection, though he was required to attend a hearing conservation program. After service, he worked as technical support for 6 years without hearing protection and then as system administrator for 2 years without hearing protection. For both occasions, he did not enter a hearing conservation program. The Veteran reported no exposure to loud noise outside of military service. The pure tone audiometry test results were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average* Right ear 10 5 5 5 0 3.75 Left ear 10 15 20 15 10 15 *Average is taken over 1000 Hz through 4000 Hz. The speech recognition scores are: 94% in the right ear and 94 % in the left ear. Based on the above test results, the examiner concluded that the Veteran's hearing was normal in both ears under the VA guidelines. The tympanogram and reflex examination was also conducted and the examiner commented the results indicated normal middle ear function in both ears. During the March 2016 hearing, the Veteran stated that while in service, he repaired heavy engines such as 5-ton tanks and Hummers as a heavy vehicle mechanic and that he was exposed to occupational loud noise. He described that he was exposed to loud noise when someone turned on the engine for the vehicle that he was repairing. He was also exposed to loud noise during training exercises when he shot weapons and didn't have time to put his ear plugs in. He stated that he was left handed and thus his left ear was more affected than his right ear. He reported that his left ear was perforated. He was not exposed to loud noises after service. He stated that the January 2011 VA examination was the last time when his hearing was checked. He noted that his hearing was getting worse and he had to approach people closer and ask them to repeat what they said when they talked to him from far away. He also reported that listening to music or TV was loud to him. The Veteran was given a new examination in June 2016. Reported results follow: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Average* Right ear 20 20 20 15 25 30 25 20 Left ear 25 35 40 45 45 40 40 41 *Average is computed over 1000 Hz through 4000 Hz. The Veteran's speech discrimination scores were: 96 % in right ear and 96% in left ear. Based on the above results, the examiner gave a diagnosis of sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies) for the right ear and sensorineural hearing loss (in the frequency range of 500 to 4000 Hz) for the left ear. The examiner opined that the Veteran's hearing loss is not related to his military service noise exposure for both ears. The examiner based his opinions on the finding of normal hearing at the time of discharge, the absence of significant decrease in hearing when compared with hearing tests at the time of enlistment, and the Institute of Medicine's report "Noise and Military Service: Implications for Hearing Loss and Tinnitus," that stated: "The committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." In addition, the examiner evaluated whether the Veteran has perforated eardrum. The examiner inferred the presence of an intact tympanic membrane (ear drum) based on the fact that tympanometry was performed successfully. Tympanogram for the left ear revealed hypermobile tympanic membrane. It was noted that acoustic reflexes with the probe in the left ear could not be tested due to artifact. Stenger test was negative in the left ear, but those results were found inconsistent with distortion product optoacoustic emission results. Based on the above, the Board finds that a preponderance of the evidence is against the claim. The VA examination opinions are supported by a reasoned opinion that is consistent with the evidence of the record, the Board affords them significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). "Where findings of material fact by the Board are properly supported and reasoned, and the Board concludes that a fair preponderance of the evidence weighs against the claim of a veteran, it would not be error for the Board to deny the veteran the benefit of the doubt." Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Taking the totality of the Veteran's VA examinations into account along with the Veteran's STRs showing no complaints, diagnosis, or symptomology of bilateral sensorineural hearing loss, based on a preponderance of all the evidence, the Veteran's bilateral sensorineural hearing loss does not meet the nexus to service connection element required to grant an entitlement to disability compensation. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). The Board concludes that there is no basis to grant service connection for bilateral sensorineural hearing loss on a presumptive basis, as there is no evidence that bilateral sensorineural hearing loss manifested to a compensable degree within one year of discharge from active duty. 38 U.S.C. §§ 101, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3,307, 3.309, 3.385 (2017). The medical opinions of record to the Veteran's claims provided thorough and persuasive rationales, the preponderance of the most probative evidence weighs against the claims. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for bilateral sensorineural hearing loss is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs