Citation Nr: 1755055	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  10-38 879	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1968 to August 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In his August 2010 Substantive Appeal, the Veteran requested a Travel Board hearing.  However, in a January 2015 telephone call, the Veteran indicated his desire to withdrawal his request for a hearing.

The Board remanded this matter in June 2017 for further evidentiary development.


FINDINGS OF FACT

1. A bilateral hearing loss disability was not manifest in service or to a compensable degree within one year of service and is not attributable to any aspect of service.

2. A bilateral hearing loss disability is not caused or aggravated by a service-connected disease or injury.


CONCLUSIONS OF LAW

1. A bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).

2. A bilateral hearing loss disability is not proximately due to or aggravated by a service-connected disease or injury.  38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duty to Notify and Assist

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).

II. Service Connection 

The Veteran asserts that his current bilateral hearing loss disability is directly related to his military service, specifically exposure to small arms fire while in service.  Alternatively, the Veteran's representative asserts that hearing loss is secondary to the Veteran's service-connected diabetes mellitus.  The Board will address both theories.

Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.
§§ 1110 (wartime service), 1131 (peacetime service). 

To establish entitlement to service-connected compensation benefits, 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Other organic diseases of the nervous system, such as sensorineural hearing loss, are identified as "chronic" diseases under 38 U.S.C.   §1101 and 38 C.F.R.
§ 3.309(a).  "For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim."  38 CFR 3.303 (b).

Service connection is warranted on a secondary basis for "disability which is proximately due to or the result of a service-connected disease or injury."  38 C.F.R. § 3.310 (a).  Secondary service connection is also warranted for "[a]ny 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."  38 C.F.R. § 3.310 (b).

The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected.

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385 then operates to establish when a hearing loss disability can be service connected.  Id. at 159.

For the 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

VA examinations in September 2009 and August 2017 confirm the presence of a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385.

The Veteran had in-service audiological evaluations pre-induction in August 1967 and at separation in July 1969, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal.  As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975.
 
In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows:


Hertz
500
1000
2000
3000
4000
Add
15
10
10
10
5

In light of the above, audiometric data from the August 1967 pre-induction examination has been converted below to ISO-ANSI:


HERTZ

500
1000
2000
3000
4000
RIGHT
30
25
20
Not tested
15
LEFT
30
30
30
Not tested
20

Audiometric data from the July 1969 separation examination has been converted below to ISO-ANSI:


HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
15
Not tested
5
LEFT
20
10
20
Not tested
10

Speech recognition testing was not performed at either of the service examinations. Service treatment records do not show any complaints, treatment, or diagnosis of hearing loss.  The Veteran specifically denied hearing loss, running ears, and ear trouble in a July 1969 report of medical history upon separation.

As noted, the Veteran asserts that he was exposed to significant noise while in service from small arms fire.  The Veteran's MOS was an armor intelligence specialist.  The Veteran's personnel records are consistent with his statements, and the Veteran is certainly competent to report noise exposure.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

A January 2009 VA examiner concluded that the Veteran's current bilateral hearing loss disability is not the result of his military service.  The examiner explained that service medical records revealed normal hearing throughout service, with no change in hearing sensitivity during service.  The examiner also noted that service treatment records did not document any problems with ear drums or ear drainage, and the Veteran denied hearing loss upon separation.  The examiner cites research studies that "have shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first.  It does not have a delayed onset nor is it progressive or cumulative....Based on these studies, the Veteran's hearing test at the time of his military separation accurately represented the effects of any hazardous noise exposure the Veteran sustained during active military service."  Furthermore, the examiner notes that the Veteran could not recall any hearing issues while in service during the January 2009 examination.  The Veteran reported that hearing loss onset about 12 years prior to the January 2009 VA examination, over 25 years after separation from service.

In an April 2017 Appellant Brief, the Veteran's representative argued that the Veteran experienced "hidden hearing loss," explaining the delay between in-service noise exposure and the onset of bilateral hearing loss.  In support of this contention, the representative referenced medical literature.  Alternatively, the representative asserted that the Veteran's hearing loss disability was secondary to his service-connected diabetes mellitus, again referencing medical literature. 

The Board remanded this matter in June 2017 for a medical opinion addressing these contentions.  With respect to the assertion that the Veteran suffered from "hidden hearing loss" upon separation, an August 2017 VA examiner concluded that it was less likely than not that the Veteran had hidden hearing loss upon separation.  In reaching this determination, the examiner provided a lengthy and thorough rationale, fully explaining her conclusion in light of the medical literature referenced by the representative.  The examiner explained that studies related to hidden hearing loss have focused on mice, and that human studies have not been completed.  The examiner explained that the most reliable current medical research supports a finding that the Veteran's bilateral hearing loss is not related to his military service.  The examiner also highlights that "hidden hearing loss" in service would still be manifested by difficulty hearing "in noise."  The Veteran's service treatment records do not document any such difficulty and the Veteran specifically denied hearing loss upon separation.  

The available medical evidence does not establish a connection between the Veteran's bilateral hearing loss disability and the Veteran's active military service. The Veteran has not submitted a medical opinion to contradict the VA examiners' opinions.  The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim.  While the Veteran did supply medical literature in support of his claim, the Board finds the August 2017 VA examiner's opinion addressing the specific study to be highly probative.  

The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including difficulty hearing), has presented no probative clinical evidence of a nexus between his current bilateral hearing loss disability and his military service. 

The Board accepts the VA opinions as highly probative medical evidence on this point.  The examiners rendered theirs opinions after thoroughly reviewing the claims file and relevant medical records.  The examiners noted the Veteran's pertinent history and provided a reasoned analysis of the case.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).

To the extent that the Veteran has asserted that his bilateral hearing loss is directly related to his service, the Board finds the evidence of record shows otherwise. There is no indication in the record, through either medical or lay evidence, of manifestations of hearing loss until approximately 1997, nearly 30 years after separation from service.  To the degree that the Veteran has asserted a continuity since service, such assertions are outweighed in this instance by the other evidence of record. 

There is no medical evidence that the Veteran's bilateral hearing loss disability manifested to a compensable degree within one year of separation from service.  
38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a).

In sum, there is no reliable evidence linking the Veteran's bilateral hearing loss disability directly to service.  Service treatment records do not document any relevant treatment, complaint, or diagnosis in service.  The evidence establishes that the remote onset of a bilateral hearing loss disability is unrelated to service.  For all of these reasons, service connection on a direct basis is not warranted for the Veteran's bilateral hearing loss disability.

Secondary Service Connection

Alternatively, the Veteran asserts that his bilateral hearing loss disability is secondary to service-connected diabetes mellitus.  In an April 2017 Appellant Brief, the Veteran's representative referenced medical literature indicating increased likelihood of hearing loss in patients with diabetes, among other contentions.  

In the August 2017 VA medical opinion, the examiner opined that it is less likely than not that the Veteran's diabetes caused or aggravated the Veteran's hearing loss disability.  The examiner explained that the Veteran reported the onset of hearing loss around 1997 or 1998, and that diabetes was diagnosed in either 2003 or 2014 (2003 according to VA treatment records and 2014 according to Appellant Brief).  As diabetes was diagnosed after hearing loss onset, the examiner opines that diabetes could not have caused hearing loss.  With respect to aggravation, the examiner notes that there has been not shift in hearing loss between 2006 and 2017, and as a result, "there is no aggravation to even opine about."

Regarding the medical literature cited by the representative, the examiner explains that it "does not verify that there is any causative effect shown in the research yet.  While there is lots of research going on in this area right now, knowing what levels of blood sugar might or might not cause any hearing loss have not yet been specified.  A correlation or incidence is not a causative effect."

The Board again acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service.  See Washington, supra; see Jandreau, supra.  However, as a layperson, it is not shown that the Veteran possesses the medical expertise to provide a medical opinion linking his diagnosed bilateral hearing loss disability to his service-connected diabetes mellitus. 

The medical opinion of record does not link the Veteran's hearing loss to his service-connected diabetes.  There is no medical or competent lay evidence showing that the Veteran's bilateral hearing loss disability is caused by or aggravated by a service-connected disability.

No competent medical opinions appropriately linking his bilateral hearing loss disability to a service-connected disability have been presented.  The Board finds that the lay statements of record are outweighed by the VA examiner's opinion.

The preponderance of the evidence is against a finding that the Veteran's currently diagnosed bilateral hearing loss disability is directly related to service, or in the alternative, secondary to a service-connected diabetes mellitus or other service-connected disability, and the claim must be denied.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.




____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs