Citation Nr: 1753468	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  09-00 957	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. R. Woodarek, Associate Counsel


INTRODUCTION

The Veteran had active service with the Army from July 1981 to July 1984 and from March 1987 to April 1991, with additional service in the Army Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO), which denied entitlement to service connection for hearing loss.

In May 2008, the Veteran testified in a Decision Review Officer (DRO) personal hearing.  The Veteran subsequently testified in a March 2010 Travel Board hearing.  Copies of each hearing transcript have been associated with the record. 

The appeal was previously before the Board in May 2011, and the claim was remanded for additional development, to include a VA audiological examination and medical opinion.  

In May 2014, the Board informed the Veteran that the Veterans Law Judge who presided over the March 2010 Travel Board hearing was no longer with the Board, and the Veteran was offered an opportunity to testify at a hearing before another Veterans Law Judge who would decide the claim. 38 C.F.R. §§ 20.707 , 20.717 (2015).  The Veteran responded in a June 2014 statement requesting a videoconference hearing before a Veterans Law Judge.

The appeal returned to the Board in July 2014 and was again remanded for a videoconference hearing per the Veteran's June 2014 request.  The Veteran subsequently withdrew his request for a videoconference in a July 2014 statement, and therefore.  Accordingly, the hearing request has been withdrawn.  

The appeal was again before the Board in February 2016 and was remanded for a VA examination.  The agency of original jurisdiction (AOJ) substantially complied with the Board's remand order and the Board finds that it may proceed with a decision at this time.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268   (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).  


FINDINGS OF FACT

1.  The Veteran has currently diagnosed left ear sensorineural hearing loss.

2.  The Veteran was exposed to acoustic trauma in service and had some degree of post-service occupational and recreational noise exposure.

3.  The Veteran's right ear hearing loss is not a "disability" for VA purposes.

4.  The Veteran did not have chronic symptoms of left ear hearing loss in service or continuous symptoms after service separation.

5.  Sensorineural hearing loss did not manifest to a compensable degree within one year of separation from service.

6.  Currently diagnosed left ear sensorineural hearing loss is not etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for hearing loss have not been met.  38 U.S.C. 
§§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA Duties 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. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.326(a) (2017).  Here, the RO issued preadjudicatory notice to the Veteran in September 2006 which met the VCAA notice requirements with respect to service connection for hearing loss.  Id.  

VA has also made reasonable efforts to obtain relevant records and evidence needed to substantiate the claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  The information and evidence that has been associated with the claims file includes service treatment records, lay statements, VA treatment records, hearing testimony, Social Security Administration (SSA) records and VA examinations.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations to address the Veteran's claimed disability has been met.  38 C.F.R. § 3.159(c)(4) (2017).  

Neither the Veteran nor his representative have 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).

For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017).




Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. 
§ 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  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.  38 C.F.R. 
§ 3.303(d) (2017).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  

For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss, as an organic diseases of the nervous system, service connection will be established if the chronic disease manifested in service or during a presumptive period following service separation, or by showing a continuity of symptoms after service.  38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (noting that VA has characterized sensorineural hearing loss as an organic disease of the nervous system at a minimum when there is evidence of acoustic trauma).  To establish service connection based on a continuity of symptoms, there must be evidence demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the continuity of symptoms.  Fountain, 27 Vet. App. at 263-64.

In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system, including sensorineural hearing loss, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself.  38 U.S.C. 
§§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017).  This presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. 
§ 3.307(d) (2017).

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.  38 C.F.R. § 3.303(d) (2017).  In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service.  See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). 

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).  In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss.  Hensley, 5 Vet. App. 155.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107.  A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim.  See 38 C.F.R. § 3.102 (2017).  When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails.  See Gilbert, 1 Vet. App. 49.  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Service Connection Analysis

The Veteran contends that hearing loss is related to exposure to conducting work around loud gun fire while in service.  After reviewing all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed right ear hearing loss "disability" for VA purposes.  38 C.F.R. § 3.385 (2016).  Additionally, the Board finds that the Veteran's diagnosed left ear sensorineural hearing is not etiologically related to service.

Service treatment records include multiple audiograms, to include service enlistment, hearing conservation and service separation audiograms.

In the authorized enlistment audiological evaluation in May 1981, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
10
15
10
LEFT
25
10
0
20
15

In the authorized hearing conservation audiological evaluation in July 1983, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
15
5
LEFT
15
15
5
15
10

In the authorized enlistment audiological evaluation in March 1987, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
15
10
LEFT
10
5
0
10
10

On the authorized audiological evaluation in July 1988, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
10
0
LEFT
20
5
15
15
5

Remarks within the July 1988 audiological evaluation indicate that the Veteran was routinely exposed to hazardous noise.  The Veteran reported using  triple flange ear plugs as issued.

On the authorized separation audiological evaluation in January 1992, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
15
10
LEFT
10
5
0
10
10

Service treatment records do not show complaints, treatment or diagnosis of bilateral hearing loss.

Military personnel records include a DD Form 214 which shows a military occupational specialty (MOS) of Combat Signaler for nine years.  The Veteran had a Rifle M18 Marksmanship Qualification Badge.

Private employment records from Outdoor Technology show the Veteran was hired in January 2004 as a fork lift operator, and received an audiological evaluation in February 2004, with pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
10
10
LEFT
30
35
20
20
30

During the examination, the Veteran reported using hearing protection and that he operated a chainsaw and power tools in his spare time.

VA treatment records include an October 2004 audiological evaluation, with pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
5
5
0
LEFT
10
15
15
15
15

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.

Private employment records from Outdoor Technology also include the results of a February 2006 audiological evaluation with pure tone thresholds, in decibels, as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
5
5
LEFT
25
20
10
15
15

During the examination, the Veteran similarly reported using hearing protection and that he operated a chainsaw and power tools in his spare time.  He additionally reported that he could hear better in one ear, that he notices hearing difficulty and has fluctuating hearing loss.

VA treatment records also contain a July 2006 audiological evaluation with pure tone thresholds, in decibels, as follows:
 



HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
X
0
LEFT
10
20
15
X
20

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.

During a May 2008 DRO hearing, the Veteran testified that as a communication specialist in service, he had to set up communication between the gun lines, and that even though he always wore hearing protection, being that close to gun fire constantly created some type of impact.  The Veteran stated that his left ear was worse than his right, and indicated that he first noticed his hearing loss was while traveling for work with Outdoor Technology, when he was given a hearing test.  He reported that he worked as a Machine Operator with Outdoor Technology and always used hearing protection as required.

An October 2008 VA audiological examination and evaluation shows pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
5
10
10
LEFT
25
30
20
20
40

The October 2008 VA examiner opined that the Veteran's hearing loss was not due to noise exposure in the military.  The October 2008 VA examination was unclear as to the results of the Maryland CNC test results. 

SSA records from April 2009 show the Veteran received a medical examination, in which the Veteran was able to hear all conversation at normal voice level, without abnormality noted of the tympanic membranes on examination.

In a March 2010 Travel Board hearing, the Veteran testified that he had been around loud noise of guns while in service.  He indicated that even with hearing protection, when the guns were fired, there was a loud chase.  He reported that after service, he worked for Outdoor Technology as a machine operator, during which he wore ear protection.  The Veteran testified that the noise at the plant was definitely not as loud as the gun noise he experienced while in service.

In June 2011, the Veteran was afforded a VA audiological examination and evaluation, the pure tone threshold results of which, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
10
10
LEFT
25
20
25
30
35

During the June 2011 VA examination, the Veteran reported reduced hearing ability with the exact date of onset uncertain.  Noise exposure in the military included gunfire and truck engines, with no other history of noise exposure.  The June 2011 VA audiologist indicated that she reviewed the Veterans claims file, to include audiometric data from 1981 to 1992, and reported that these test results showed normal hearing bilaterally.  She opined that hearing loss was not due to military noise exposure in addition to the fact that the Veteran could not determine the exact date for the onset of hearing difficulties.  The June 2011 VA examination did not provide Maryland CNC test results.

An April 2016 VA audiological examination and evaluation showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
15
15
10
LEFT
25
15
20
25
30

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 in the left ear.  The April 2016 VA audiologist diagnosed the Veteran with left ear sensorineural hearing loss and opined that it was less likely as not caused by or a result of an event in military service.  She indicated that audiogram results from service showed normal hearing in both ears and that the Veteran had a history of abnormal middle ear function. 

In an October 2017 appellate brief, the Veteran, through his representative, cited to medical literature which showed that despite a temporary return to normal hearing measurements after noise exposure, there is primary degeneration of cochlear neurons after noise exposure, which are masked and hearing damage resulting in degeneration years later may occur despite normal hearing shortly after exposure.

Initially, the Board notes that the June 2011 and April 2016 VA examination audiological evaluations show that right ear pure tone thresholds were not recorded at 40 decibels or greater in any of the frequencies or 26 Hertz or greater in at least three frequencies, and speech recognition scores were not less than 94 percent for the right ear at any point during the appeal period.  Therefore, the Veteran does not have impaired right ear hearing for VA purposes; as such, the Board finds that the Veteran does not have a current right ear hearing loss disability.  38 C.F.R. § 3.385 (2016).

The Veteran is competent to describe events that occurred during military service such as acoustic trauma and any symptomatology regarding his perceived hearing difficulties.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  However, the Veteran is not competent to provide a current medical diagnosis of hearing loss, as such requires medical testing and expertise.  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).  The most probative evidence regarding the nature of any hearing condition, therefore, is the June 2011 and April 2016 VA audiological testing results conducted by a qualified medical professional, who recorded pure tone thresholds necessary to determine whether the Veteran has a right ear hearing disability for VA purposes.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C.A. §§ 1110, 1131 (West 2014); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997).  Because the Veteran does not have currently diagnosed right ear hearing loss "disability" under 38 C.F.R. § 3.385, service connection for bilateral hearing loss is not warranted.  Because the preponderance of the evidence is against the claim for service connection for right ear hearing loss, the claim must be denied, and the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. §3.102 (2017).

The Board finds that the evidence shows the Veteran was exposed to acoustic trauma while in service.  The Veteran's DD Form 214 indicates an MOS of combat signaler for nine years of service.  The Veteran is competent to describe noise exposure in service, and the Board finds that his June 2008 and March 2010 hearing testimony, and reports within May 2011 and April 2016 VA audiological examinations, consistently describe noise exposure from gun fire while conducting his duties as a combat signaler, and are credible.  The Board notes that while the Veteran indicated he used hearing protection while in service, the Board also finds probative the July 1988 audiological evaluation report which indicates that the Veteran was routinely exposed to hazardous noise.

The Board also finds that the Veteran had some degree of occupational and recreational noise exposure after service.  Employment records from Outdoor Technology, where the Veteran was employed as a machine operator, include audiological evaluations from February 2004 and February 2006, which showed a shift in hearing loss.  The Veteran reported, during these hearing examinations, that he was exposed to recreational noise from operating power tools.  June 2008 DRO and March 2010 Travel Board hearing testimony shows the Veteran reported exposure to noise while working as a machine operator, but indicated that he used ear protection as required and that the occupational noise at Outdoor Technology was not as loud as the gun fire in service.

Based on the June 2011 VA audiology evaluation results, the Board finds that the Veteran's currently diagnosed left ear sensorineural hearing loss is a "disability" for VA purposes, as left ear pure tone thresholds were 26 Hertz or greater in at least three frequencies.  38 C.F.R. § 3.385 (2017).  However, upon review of all the evidence, lay and medical, the Board finds that the Veteran's current left ear hearing disability is not etiologically related to service.

The Board finds that the Veteran did not have chronic symptoms of hearing loss in service or continuous symptoms after service separation, and the Board finds that sensorineural hearing loss did not manifest to a compensable degree within one year of service separation.  While the Veteran has provided credible lay evidence of noise exposure in service, he has not identified having both chronic hearing loss symptoms in service and continuous hearing loss symptoms since service.  Instead, the Veteran testified that he did not complain of hearing loss in service, and reported that he did not realize he had hearing loss until after he got out of service when he received results from a February 2004 audiology evaluation while working for Outdoor Technology.

The evidence of record does not indicate that sensorineural hearing loss manifested to a compensable degree within one year of service separation to establish presumptive service connection under 38 C.F.R. § 3.303(b).  A January 1992 separation audiogram does not show that hearing loss manifested to a compensable degree at service separation, and the earliest evidence of hearing loss was in a February 2004 audiogram, dated many years after service separation. 

The evidence of record does not otherwise establish a nexus between current hearing loss and in-service noise exposure, either by lay or medical evidence.  VA audiological examinations in June 2011 and April 2016 show that VA audiologists, upon review of the Veterans claims file, including service treatment records, opined that the Veteran's hearing loss was less likely than not related to service.  Both VA audiologists discussed that the Veteran had normal hearing in all audiograms conducted during service, and the April 2016 VA audiologist indicated that the Veteran had a history of middle ear issues and function.  Insomuch as the Veteran contends that the acoustic trauma he experienced in service caused his current hearing loss, the Board finds that the Veteran is not competent to render such an opinion as to the etiology of his hearing loss, as such requires medical testing and expertise.  Jandreau, at 1376-77.

While the Veteran cited to medical literature within an October 2017 appellate brief that indicated despite normal hearing measurements recorded after noise exposure, hearing damage resulting in degeneration years later may still occur, the Board finds that generic texts, such as the one offered, which does not address the facts of this particular Veteran's case with a sufficient degree of medical certainty, does not amount to competent medical evidence of causality.  See Sacks v. West, 11 Vet. App. 314 (1998); Beausoleil v. Brown, 8 Vet. App. 459 (1996).  Therefore, the Board finds that the medical study offered by the Veteran does not amount to probative evidence of a nexus between the Veteran's hearing loss and noise exposure in service.

The Board has not precluded service connection for the Veteran's left ear hearing loss because his hearing was found to be within normal limits at the time of his separation from service.  The Board has denied service connection in this case, based on the lack of evidence of chronicity of hearing loss symptomatology in service and since separation from service, and because the competent, credible, and probative evidence of record does not establish a nexus between current hearing loss in service.  The Board notes, further, that in the present case that no increase in hearing threshold levels was shown by service audiograms.  The holding in Hensley provides that the Board must explain the criteria it used to determine whether a measured worsening of disability constituted an increase in disability in service.  See Hensley, 5 Vet. App. at 163.  In the present case, no increase in disability was shown by service audiograms; thus, the Board finds based on the available evidence that a measurable increase in disability was not shown in service. 

For the reasons discussed above, the Board finds that the weight of the evidence is against finding that left ear hearing loss is etiologically related to active service. Because the preponderance of the evidence is against the claim for service connection for right ear hearing loss, the claim must be denied, and the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. 
§ 3.102 (2017).


ORDER

Service connection for hearing loss is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs