Citation Nr: 1753533	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  11-18 906	)	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.


REPRESENTATION

Appellant represented by:	Dan Curry, Attorney


ATTORNEY FOR THE BOARD

M. Pryce, Associate Counsel


INTRODUCTION

The Veteran served in the Army National Guard from February 1972 to February 1978, to include a period of active duty for training from May 1972 to September 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

As a matter of background, this issue previously came before the Board in July 2014, at which time it remanded the issue remaining on appeal, as well as the issues of service connection for right ear hearing loss, tinnitus, and posttraumatic stress disorder (PTSD).  It also denied service connection for a right knee disability.  during the pendency of the remand, the Veteran appealed the denial of service connection for a right knee disability to the United States Court of Appeals for Veterans Claims (Court), and pursuant to a Joint Motion for Partial Remand, the Court vacated the Board's decision with respect to the right knee claim, and remanded it to the Board for further development.  In May 2015, the RO issued a rating decision which granted service connection for PTSD.

In September 2015, the remaining issues were returned to the Board.  The Board issued a new remand, ordering that a new examination be scheduled in connection with the right knee claim, and ordering that the right and left ear hearing loss and tinnitus claims be readjudicated and a statement of the case issued.  In February 2016, a rating decision was issued which granted service connection for a right knee disability, thus, that issue is no longer before the Board.  Further, in September 2017, a rating decision was issued which granted service connection for right ear hearing loss and tinnitus.  As such, those issues are also no longer before the Board.  

The issue of reopening the claim of entitlement to service connection for an ulcer disability based on new and material evidence has been raised by the record in an April 2016 Fully Developed Claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).




FINDING OF FACT

The Veteran's left ear hearing loss was observed upon entry into service, and did not worsen in severity during service.  


CONCLUSION OF LAW

The criteria for service connection of left ear hearing loss have not been met.  38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017).  Here, the duty to notify was satisfied by way of a letter sent in January 2011.  

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained.  The RO has obtained the Veteran's VA treatment records, private treatment records; service treatment records to the extent that they are available, VA examination reports, private medical opinions, and statements from the Veteran and his representative.  Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none.  Hence, the Board is satisfied that the duty-to-assist was met.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).    


Service Connection

The Veteran seeks service connection for left ear hearing loss, which he attributes to his military service.  While he has acknowledged that he has worked in industrial environments since service, he stated that he always wore hearing protection, and that his military service was the more significant factor in his current condition.

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (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).  Generally, establishing service connection requires medical or, in certain circumstances, lay 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 disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306.

For preexisting injury or diseases noted on examination into active service, the claimant has the burden of showing, to an equipoise evidentiary standard, that the condition increased in severity during his active service.  38 U.S.C. § 1153; 38 C.F.R. § 3.306; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (explaining "[u]nder section 1153, however, the appellant bears the burden of showing that his preexisting condition worsened in service.").  Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

In this case, the Board finds that service connection should be denied.  

At the outset, medical evidence of record demonstrates, and VA concedes that the Veteran has presently diagnosed hearing loss in his left ear.  Further, per the Board's 2014 remand, his military occupational specialty (light weapons infantry) is sufficient for VA to concede in-service noise exposure.  

Moreover, unlike the Veteran's right ear hearing loss, the Veteran's entrance examination in February 1972 reflects that he had left ear hearing loss when he entered service.  Specifically, on that occasion, the following audiogram results in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
N/A
25
LEFT
20
20
10
N/A
40

Thus, because the Veteran showed an auditory threshold of 40 decibels, he had hearing loss within the definition of that disability upon entrance into service.  38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017) (every veteran hall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service); see also 38 C.F.R. § 3.385 (2017) (giving the statutory thresholds for a diagnosis of hearing loss).  Thus, the Board must address whether his left ear hearing loss, which was observed upon entry into service, worsened in severity during service.  

At the outset, the Board observes that there is no separation examination conducted following his period of active duty for training, which was completed in September 1972.  He did, however, undergo a periodic retention examination for his National Guard service in April 1977.  That examination showed the following auditory thresholds in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
N/A
45
LEFT
15
15
15
N/A
45

There is no available audiogram from the time of his separation from the National Guard and, while the Veteran was notified that his service treatment records were incomplete, he did not provide any further evidence dating to his period of service.  

In order to determine whether his hearing worsened in severity during service, the Veteran was afforded a VA examination November 2014.  On that occasion, the VA examiner stated that the Veteran's hearing loss, which clearly pre-existed service was not aggravated beyond normal progression by military service.  In a May 2015 addendum opinion, this same examiner observed that the Veteran's 1972 entrance examination demonstrated mild high frequency hearing loss in the left ear and, although there is no separation examination in September 1972 for comparison, it is less likely than not that the Veteran sustained permanent acoustic trauma in the four months that he was on active duty.  Thus it was less likely than not that his left ear hearing loss was aggravated by military noise during his period of active service.  

The Veteran was afforded a new VA audiological examination in June 2017, where the VA examiner opined that it was less likely than not that his pre-existing left ear hearing loss was aggravated beyond its natural progression by service.  Particularly, while the examiner acknowledged that the Veteran's military occupational specialty was associated with routine exposure to high risk noise, his service treatment records show no evidence that his hearing actually worsened in severity.  In rendering the opinion, the examiner pointed out that there is no perceptible threshold shift between audiological examinations in 1972 and 1977.  Moreover, the examiner cited a 2005 Institute of Medicine study, which concluded that there is insufficient scientific evidence for delayed onset of hearing loss secondary to military noise exposure.  

The Board notes that various VA treatment records between 2011 and 2016 include audiogram data, but do not offer nexus opinions regarding any aggravation by service.  

In support of his claim, the Veteran submitted a private audiogram in January 2011 which showed active hearing loss in both ears, but did not include any medical opinions regarding the cause of or aggravation of his preexisting hearing loss by service.  In December 2014, he submitted a private medical opinion.  That opinion confirmed the Veteran's present hearing loss, and stated that he reviewed the Veteran's available service treatment records, to include the two exams conducted during service, as well as the November 2014 VA examination report.  The examiner specifically noted the shift of 20 decibels documented at 4000 Hertz in his right ear between the 1972 and 1977 tests.  Because this shift in hearing occurred during his service in the National Guard, and prior to his post-military career in a steel mill, the steel mill could not be the cause of the Veteran's hearing loss.  As such, it was more likely than not that the Veteran's hearing loss was caused by his military noise exposure.  

While the evidence the Veteran has submitted has probative value, the Board finds the May 2015 addendum opinion and the June 2017 opinions to be more persuasive.  Those opinions were rendered in contemplation of all evidence of record, including the Veteran's entrance examination which showed hearing loss in the left ear prior to active service, and the 1977 hearing evaluation which showed no significant change in auditory thresholds in the left ear, despite significant changes in the right ear.  Further, the June 2017 opinion cites to known medical principles, as well as medical treatise evidence to support the opinion.  Those opinions were provided by a medical professional, and in contemplation of the complete records, to include the Veteran's own reported medical history and complaints of pain.  Thus the Board finds them to be of great probative value.  See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008).  

In contrast, while the private opinion in December 2014 was based on a review of the Veteran's service treatment records, that opinion relied exclusively on a 20 decibel shift in hearing in the right ear to demonstrate worsening of hearing throughout his National Guard service.  Audiological values in the right year are of little value to the question of whether his already established left ear hearing loss was aggravated by service.  Therefore, the Board places greater probative value on the VA examinations.  

Finally, the Board recognizes the Veteran's statements that his hearing loss was caused by in-service noise exposure, and not by any post-service occupational noise exposure experienced throughout his career in a steel mill (the Board takes notice that the Veteran asserts that he always wore hearing protection in his post-service career, and accepts that assertion as credible).  Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The general principle that acoustic trauma may lead to hearing loss is commonly known and, therefore, the Veteran's testimony that noise exposure in service worsened his hearing loss has some tendency to make a nexus more likely than it would be without such an assertion.  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.  The Board finds the 2015 and 2017 VA opinions more probative than the Veteran's statements.  The examiners who rendered those opinions are medical professionals and were able to review the overall record, including the Veteran's history and statements.  Thus they are more credible and probative of the issue on appeal.  

In short, the Board finds that the Veteran's left ear hearing loss, which was documented on his entrance examination in 1972, did not worsen in severity during his active service, and thus the preponderance of the evidence is against the Veteran's claim for service connection of left ear hearing loss.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017).  


ORDER

Service connection for left ear hearing loss is denied.



____________________________________________
B. T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs