Citation Nr: 1754830	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  15-30 321	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss, to include as secondary to a service-connected disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Timothy C. King, Associate Counsel






INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C. § 7107(a)(2) (2017).

The Veteran had honorable active service in the United States Army from February 1964 to February 1966.  The record reflects that the Veteran was a sharpshooter with service in the Republic of Vietnam.  

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the decision, entitlement to service connection for bilateral hearing loss was denied. 

The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). Additional medical records were uploaded into VBMS after the January 2016 Certification of the Appeal, but as review of the records show they are either duplicitous or otherwise have no bearing on the appellate issues, no further action on these records is warranted. 38 C.F.R. § 19.37(b).


FINDING OF FACT

The preponderance of the evidence indicates that the bilateral hearing loss was not caused or aggravated by the Veteran's active military service, nor is it proximately due to, the result of, or caused by or aggravated by the Veteran's service connected diabetes mellitus. 






CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

In this case, 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 a duty to assist argument).

II. Service Connection

Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. App. 258, 264 (2015) (Sensorineural hearing loss is a chronic condition under 38 C.F.R. § 3.309(a)). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). A showing of chronicity requires a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b).

When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Walker v. Shinseki, 708 F.3d 1331, 1336, 1339 (Fed. Cir. 2013) (explaining that "shown as such in service" means "clearly diagnosed beyond legitimate question"). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1338-39.

A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected ("secondary service connection"). 38 C.F.R. § 3.310. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 

Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.").

The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board's analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the 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). 


A. Analysis

In this matter, the Veteran served in the Army from February 1964 through February 1966. The Veteran is service connected for diabetes mellitus, type II as a result of herbicide agent exposure. The Veteran is also secondarily service connected as associated with diabetes mellitus, type II for the conditions of: diabetic nephropathy; bilateral diabetic retinopathy with open angle glaucoma; peripheral neuropathy of right lower extremities; and peripheral neuropathy of left lower extremity.

On appeal and specifically pled, the Veteran contends that he is entitled to secondary service connection for his hearing loss, contending that it was caused or aggravated beyond its normal progression as a result of the service connected diabetes mellitus. The issue of direct service connection is also on appeal. However, the preponderance of the evidence of record demonstrates that the Veteran's hearing loss did not manifest during, or as a result of, active military service. Also, the preponderance of the evidence demonstrates that the hearing loss was not caused or aggravated by the Veteran's service connected diabetes mellitus. As such, entitlement to service connection for bilateral hearing loss is not warranted.

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, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection for impaired hearing is only established when audiometric testing meets the specified pure tone and speech recognition criteria. 

Prior to November 1967, service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement.  VA currently uses ISO (ANSI) units.  For purposes of comparison between the service audiometric data and more recent VA audiometric data, the table below shows the ASA measurements recorded in service with the comparable ISO (ANSI) measurements in adjacent parentheses.  

The Veteran's service treatment records are silent for treatment or complaints of hearing loss, and audiological examinations performed do not show impaired hearing or any in-service increase in impairment. The audiological evaluation in May 1965, noted pure tone thresholds, in dB, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5 (20)
10 (20)
10 (20)
N/A
10 (20)
LEFT
10 (25)
10 (20)
10 (20)
N/A
10 (20)

On the audiological evaluation upon separation in February 1966, pure tone thresholds, in dB, were recorded as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0 (15)
0 (10)
0 (10)
N/A
0 (10)
LEFT
0 (15)
0 (10)
0 (10)
N/A
0 (10)

No other entries documented any hearing loss, and no other evidence to support in service hearing loss has been submitted or received. Thus, it is concluded that the Veteran did not have the condition of hearing loss during service. 

Likewise, there is no evidence to suggest that this condition manifested within one year of the Veteran's separation from active duty.  In the record, the current disability is first documented over forty years after the Veteran left service. According to a June 2011 VA audiological consultation note, the Veteran was suffering from bilateral hearing loss.  It was noted that this condition had its onset approximately 3 years earlier.  



On the authorized audiological evaluation performed in February 2013, pure tone thresholds, in dB, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
45
65
60
LEFT
25
30
45
55
65

Pure tone threshold averages were 51 dB for the right ear and 49 dB for the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. Therefore, the Veteran clearly has a current hearing loss disability for VA rating purposes.  See 38 C.F.R. § 3.385.

An additional VA examiner opinion was provided in October 2015.  The examiner reviewed the 2013 audiogram results outlined above and confirmed that the Veteran was suffering from bilateral high frequency sensorineural hearing loss compatible with the Veteran's current age.  Although it is well-established in medical literature that sudden hearing loss is much higher in diabetics than the normal population, there is no credible study of which the examiner was aware that might support causation in this instance.  The examiner noted that one might speculate this to be the case, but the examiner was unable to say that it is even as likely as not to be present in this instance.  

It appears that in-service noise exposure was appropriately conceded by the Agency of Original Jurisdiction ("AOJ") as being consistent with the Veteran's service duties, which are noted as having been a heavy vehicle driver and a sharpshooter in service records. 

Regarding direct and presumptive service connection, in the February 2013 VA examination, the examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service, noting that the in-service test results were suggestive of bilateral hearing within normal limits, and the hearing test upon separation in 1966 showed normal hearing. The October 2015 VA medical opinion identified hearing loss as being consistent with the Veteran's age. Review of the records before the Board shows earliest documentation of a hearing problem from June 2011; there is no other evidence presented by the Veteran or otherwise in the record suggesting that hearing loss manifested in-service or within a year after service, no evidence that there was a diagnosis in-service.

Regarding direct service connection, it is concluded that there is not a direct causal or aggravation relationship between the present disability and any in-service incurrence so as to establish direct service connection under 38 C.F.R. § 3.303(a) or (b). Further, there is not any evidence of manifestation to a sufficient degree within the requisite timeframe so as to potentially qualify for a presumptive service connection under 38 C.F.R. § 3.309. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence).  In the present case, the absence of any evidence of a diagnosis of or treatment for a hearing loss disability for more than 4 decades after separation tends to suggest that the Veteran's hearing loss has not existed since active duty.  
Accordingly, service connection has not been established on a direct basis. 

On the subject of secondary service connection, in his August 2015 appeal the Veteran contended that his hearing loss is related to his service connected diabetes. The Veteran submitted, in conjunction with the appeal, various printouts of articles that state, inter alia, that hearing loss is common in diabetics, identifying the prevalence between diabetes and hearing impairment. 

A medical opinion on this secondary service connection theory of entitlement was sought by the AOJ, and in an October 2015 VA medical opinion, the examiner considered the entirety of the file, including the articles the Veteran submitted. The examiner noted that the hearing loss was compatible with the Veteran's age, and stated that although sudden hearing loss is "well established in medical literature" as being "much higher in diabetics than the normal population," credible studies do not support causation. The examiner concluded that the hearing loss was less likely than not (less than 50 percent probability) proximately due to or aggravated by the Veteran's diabetes mellitus type II.

Although the Veteran contends in the informal hearing presentation that the evidence supporting a secondary service connection is in equipoise, the Board does not agree. With regards to the Veteran's lay statements on the link between diabetes and hearing loss, the record contains no evidence to suggest that the Veteran has the requisite training or expertise to offer such a complex medical opinion.  The Veteran is competent to describe symptoms, but is not competent to render an opinion as to an etiological link between his symptoms and his service connected disability. See Jandreau, 492 F.3d at 1377. As such, the Veteran's lay assertions are of little probative value when weighed against the competent medical evidence of record.

The articles the Veteran submitted also have little probative value here. The Court has held that a medical article or treatise" can provide important support when combined with an opinion of a medical professional" if the article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Wallin v. West, 11 Vet. App. 509 , 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998). Here, the report is not supported by a medical opinion showing "plausible causality" under the facts of the instant case; and is therefore not probative. Specifically, the articles do not directly rebut the crux of the October 2015 VA medical opinion, do not evaluate the specifics of the Veteran's case, but simply point to a greater prevalence of hearing loss amongst diabetics. Causation does not equate to correlation-a point that the October 2015 VA medical opinion makes, rejecting prevalence as being dispositive of the issue at hand. The October 2015 VA medical opinion considered additional factors in reaching a conclusion that the Veteran's evidence does not address: it noted that hearing loss was compatible with the Veteran's age, accounted for the medical literature on the topic, and was formulated after a full review of the Veteran's file and medical history. 

Because the October 2015 VA medical opinion is the only evidence that speaks to the etiology for the particulars of the Veteran's case, it is afforded the greatest weight in determining the subject of causation and aggravation as it pertains to secondary service connection. As there is no competent and credible evidence contrary to the October 2015 VA medical opinion, the Board concludes that the preponderance of the evidence shows that the Veteran's hearing loss was not caused or aggravated by his service connected type II diabetes mellitus, and entitlement under 38 C.F.R. § 3.310 accordingly is not established. 

Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. Accordingly, the claim is denied.


ORDER

Entitlement to service connection for bilateral hearing loss, to include as secondary to a service-connected disability, is denied. 



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs