Citation Nr: 1756422 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-04 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from September 1975 to December 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDING OF FACT Bilateral hearing loss, first manifested many years after service, did not have its clinical onset during or as a result of service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1154(a) (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in January 2011, prior to the initial adjudication of the issue on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all VA treatment records. The Veteran has not identified any outstanding and available medical treatment records. In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the service treatment records as well as the medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran contends that he incurred bilateral hearing loss due to in-service noise exposure. Unfortunately, the Board finds that service connection is not warranted. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). The Board notes that his claimed noise exposure from weapons training and flight line engine noise is consistent with the circumstances of his service. Therefore, his reports are competent and credible and the in-service noise exposure is conceded. 38 U.S.C. § 1154(a). However, service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. His hearing was noted to be normal upon enlistment examination in May 1975, examination in September 1979, and upon separation examination in November 1981. Additional service treatment records from the Veteran's Reserve service document hearing within normal limits in July 1983 and March 1987 audiogram examinations and the Veteran specifically denied hearing loss and related ear trouble in reports of medical history completed in July 1983, March 1987, and June 1992. Following service, the first evidence of bilateral hearing loss is the Veteran's January 2011 claim for service connection benefits, almost 30 years post-discharge from active duty service. The first diagnosis of bilateral hearing loss is in an October 2011 VA examination, where an audiogram revealed bilateral hearing loss according to 38 C.F.R. § 3.385. During that examination, the examiner reviewed the Veteran's reports regarding the onset of hearing loss, in-service noise exposure, and minimal post-service noise exposure as well as his service treatment records. The examiner found that there was not a shift in the auditory thresholds from enlistment to separation and that the Veteran's hearing was within normal limits at both examinations. Therefore, the examiner concluded that it was less likely than not that the Veteran's current bilateral hearing loss was caused by or the result of military noise exposure. Upon VA examination in February 2016, the Veteran's current hearing loss disability was again confirmed and the examiner noted the in-service noise exposure. Regarding service treatment records, the examiner stated that a comparison of the objective audio testing at entrance and separation does not reveal a standard threshold shift in either ear at the time of the Veteran's separation from the military. The examiner further explained that an Institute of Medicine (IOM) report on noise exposure in the military concluded that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after the noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. Given that the Veteran's hearing thresholds in both ears were within normal limits at the time of separation exam, with no standard threshold shift evident in comparison to entrance thresholds, the examiner stated that there is no evidence on which to conclude that any hearing loss that the Veteran currently has, in either ear, is caused by, or a result of, military noise exposure. The remainder of the medical evidence of record does not include any evidence regarding the etiology of bilateral hearing loss. At the outset, the Board notes that hearing loss or an organic disease of the central nervous system was not demonstrated within the first year following discharge from military service. Therefore, presumptive service connection is not warranted under 38 C.F.R. §§ 3.307(a) and 3.309(a) (2017). Based on the forgoing, the Board concludes that service connection is not warranted for bilateral hearing loss. Despite his conceded in-service noise exposure, his hearing was normal upon discharge and the medical examiners have found that there was no significant threshold shift during service. As noted above, the record, including service treatment records, is negative for hearing loss for more three decades post-service, audiograms conducted after the Veteran's discharge from active duty service were within normal limits, and the Veteran denied hearing loss during these post-service examinations. The first evidence of hearing loss came in the form of the Veteran's claim for benefits. While the Veteran reported during the Board hearing that he first noticed hearing loss during or shortly after service, this is the first time in the entire record that he reported noticing such symptoms during service. Rather, throughout the claim, he has only stated that he was exposed to loud noises during service, that he was not exposed to noises capable of causing hearing loss outside of service, and, therefore, his current hearing loss must be due to such exposure. However, the Veteran is not competent to render such an opinion. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise, which he has not been shown to possess. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Although he is competent to report when lay-observable symptoms such as a loss in hearing acuity began, the fact that his hearing was found to be normal at separation, that he specifically denied hearing loss/ear problems twice post-discharge, and his reported symptoms were not noted for three decades post-service weighs significantly against his claim. The Board acknowledges the Veteran's December 2011 statement in which he cited to a study that found that prolonged exposure to loud noises can cause permanent hearing loss. However, as the particular facts of the Veteran's situation were not considered in that study, it does demonstrate that the Veteran experienced permanent hearing loss as a result of his in-service noise exposure and is of no probative value. The Veteran has not submitted competent medical evidence that his current bilateral hearing loss disability was incurred during or due to service. In fact, the only competent medical evidence of record is the opinion of the VA examiners, which are against the claim. Based on the foregoing, the Board finds that the evidence of record does not support a finding of service connection for bilateral hearing loss. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs