Citation Nr: 1756419 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-02 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 1977 to October 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veteran's Law Judge during a December 2016 hearing in St. Petersburg, Florida. A transcript is of record. FINDINGS OF FACT The Veteran currently has bilateral sensorineural hearing loss that was not caused by acoustic trauma in service. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.3159(b) (2017). Here, the RO issued pre-adjudicatory notice to the Veteran in May 2010 that satisfied the duty to notify. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and service personnel records were obtained, and a VA examination was provided in October 2010. As discussed in greater detail below, the VA examination was adequate to decide the claim. For these reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a disability is initially diagnosed after separation from service and not within any applicable presumptive period, service connection may be granted if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Hearing loss is a disability for VA purposes when one of the following conditions are met: (1) an auditory threshold at frequencies of either 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; (2) auditory thresholds for at least three of the aforementioned frequencies are 26 decibels or greater; or (3) Maryland CNC Test speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. But see Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is between 0 and 20 decibels, while anything above 20 decibels indicates some degree of hearing loss). Bilateral hearing loss is a chronic disease that may be service connected on a presumptive basis if it was diagnosed in service or if it manifested to a degree of at least 10 percent within one year following service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If chronicity is not established in service or in the presumptive period, a continuity of symptoms after discharge can support a claim for a disability that was otherwise noted in service. 38 C.F.R. §§ 3.303(b), 3.307; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir 2013) (finding continuity of symptoms only satisfies the nexus requirement if the claimed disability is a chronic disability listed under 38 C.F.R. § 3.309(b)). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he is entitled to service connection for bilateral sensorineural hearing loss. The medical evidence of record shows that the Veteran currently has bilateral sensorineural hearing loss that is considered disabling for VA purposes. In June 2010, audiometric testing revealed mild to severe sensorineural hearing loss in both ears. This was confirmed at an October 2010 VA examination where audiometric testing revealed auditory thresholds at or above 50 decibels at 1000 to 4000 Hertz in the left ear and auditory thresholds at or above 40 decibels at 1000 to 4000 Hertz in the right ear. The VA examiner did not consider the Veteran's speech recognition score because there was a significant discrepancy between the results of the June and October examinations rendering the scores unreliable. He nevertheless diagnosed the Veteran with bilateral sensorineural hearing loss. Accordingly, the Veteran meets the first element of service connection. The Veteran reports that during service he was exposed to cannon fire as a communications Field Wire Man assigned to a firing battery. The Veteran is competent to report exposure to hazardous noise in service, as he has personal knowledge and noise is lay observable. His reports are credible and entitled to probative weight as they are consistent with the circumstances of his service. As such, the second element of service connection is met. Unfortunately, the Veteran is not entitled to service connection because the record lacks competent, credible and probative evidence that he experienced hearing loss in service or that hearing loss manifested to a compensable degree within the required presumptive period. Further, the record does not show that the Veteran experienced a continuity of symptomatology since service. A comparison of the Veteran's audiometric evaluations at enlistment and separation shows only a slight shift at 4000 Hertz from 15 to 25 decibels in the left ear and at 3000 Hertz from 15 to 20 decibels in the right ear. Slight hearing loss in the left ear was shown at 6000 Hertz at enlistment and it did not worsen by separation. The Board notes that while 6000 Hertz does not apply for the purposes of 38 C.F.R. § 3.385, even that frequency does not demonstrate any significant shift in hearing capabilities during service. McKinney v. McDonald, 28 Vet. App. 15 (2016). The results of the audiometric testing are consistent with the Veteran's subjective responses on his Reports of Medical History at enlistment and separation in which he denied experiencing hearing loss. Therefore, the Veteran's hearing remained stable throughout service despite excessive noise exposure. Furthermore, the record lacks evidence that there was a continuity of disease symptoms shown after discharge. 38 C.F.R § 3.303(b); Walker, 708 F.3d at 1338. A private medical examination report indicates that the Veteran suffered from hearing loss as early as October 1997, but it does not provide any opinion linking the Veteran's hearing loss to acoustic trauma in service. In addition, the examination took place 17 years after separation from service. The passage of many years between discharge from active service and medical documentation of a claimed disability is one factor the Board may consider as evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The competent medical evidence of record indicates that the Veteran's hearing loss is not related to service. In October 2010, following a VA examination, the VA examiner opined that the Veteran's hearing loss is less likely than not due to acoustic trauma in service because his enlistment and separation physicals demonstrate that no significant threshold shift occurred during service and there is no scientific evidence to support delayed onset of noise induced hearing loss. She supported this conclusion with a citation to the Institute of Medicine's 2005 study on military noise exposure. In assigning probative weight to a medical opinion, the Board must consider whether it is: (1) based on sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). It may also consider whether the examiner had access to the claims file, reviewed prior clinical records and pertinent evidence, and provided a thorough, detailed and definitive opinion supported by a detailed rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The October 2010 opinion is adequate to address the Veteran's claim. It is predicated on a review of the claims file and the medical records contained therein, it includes a description of the Veteran's history of noise exposure, and it contains an adequate medical opinion along with reasons and bases for the opinion rendered. Accordingly, it is entitled to great probative weight. The Board recognizes the Veteran's belief that he experienced hearing loss that is attributable to service. The Veteran is competent to report experiences observable by his senses, including his understanding as to whether he experienced hearing loss at any particular time. However, he is not competent to provide a diagnosis or etiology regarding hearing loss as this requires specialized medical training and knowledge, as well as audiometric testing. Jandreau, 492 F.3d at 1377-78. The audiograms taken an entry into service and at separation establish that the Veteran's hearing capability was not affected by service. Based on all the evidence of record, the Board finds that the Veteran does not meet the requirements for service connection under any applicable theory of entitlement. His claim for service connection for bilateral sensorineural hearing loss must be denied. Brammer v. Derwinski, 3 Vet. App. 223 at 225 (1992). ORDER Service connection for bilateral sensorineural hearing loss is denied. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs