Citation Nr: 1756678	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  10-06 245	)	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

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Joseph, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1969 to February 1971.  During his period of service, the Veteran earned the Army Good Conduct Medal, Bronze Star Medal with First Oak Leaf Cluster, Army Commendation Medal, Vietnam Service Medal with Three Bronze Service Stars, Republic of Vietnam Campaign Medal with Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation Badge, and Valorous Unit Award. 

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

In October 2010, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer with the Board.  A transcript of the hearing has been associated with the claims file.  In an August 2017 letter, VA advised the Veteran of his right to testify at a hearing before a different Veterans Law Judge who would decide the claims.  38 C.F.R. § 20.717 (2017).  The Veteran replied and stated that he did not wish to appear for another Board hearing.  As such, the Board may proceed with adjudicating the Veteran's claim.

This issue was previously remanded in May 2011 and June 2012.  All necessary development has been accomplished, and therefore appellate review of the claim may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).


FINDING OF FACT

The preponderance of the evidence fails to establish that the Veteran's current bilateral hearing loss disability is the result of a disease or injury during his active duty service.


CONCLUSION OF LAW

Bilateral hearing loss was not incurred, nor is it presumed to have been incurred in active duty.  38 U.S.C.A. §§ 1111, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d) (2017).  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB.  Higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 156 (1993).  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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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 (2017).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

With respect to the first element of service connection, a current diagnosis, the Veteran underwent a VA examination in June 2015, at which time he was diagnosed with bilateral sensorineural hearing loss.  Thus, the current disability criterion for service connection is met.  See Shedden, supra.

Next, the Board must consider whether the Veteran sustained a disease or injury in service.  The Veteran's DD-214 shows that his military occupational specialty (MOS) was Field Artillery Basic during service.  During his June 2010 hearing, the Veteran testified that he was exposed to loud noises from artillery, helicopters, and airplanes without the use of ear protection.  The Veteran also testified that he was exposed to incoming enemy fire, such as rockets and mortars.  Thus, the Board finds that the record contains credible evidence of in-service noise exposure.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).  As such, the Veteran has satisfied the second element for service-connection.

As to the third element of service connection, it must be determined whether the Veteran's current bilateral hearing loss is related to service.

The Veteran's service treatment records include an audiogram at the time of induction dated July 1968 and a February 1971 separation audiogram, both of which show hearing within normal limits.  As there is no competent evidence of a hearing loss disability in service or within one year following discharge from service, competent evidence linking the current condition with service is required to establish service connection.  

A VA examination was conducted in April 2011.  The examiner noted that the Veteran's entrance and separation examinations reveals hearing within normal limits.  

The Veteran reported that he had difficulty hearing and stated that he had fullness in the ears.  He further reported that he was exposed to cannon fire, outgoing helicopters, incoming aircrafts, and gunfire from automatic weapons during service.  The Veteran also reported some occupational noise exposure post-service, as he performed manual labor for a tree trimming business for three years.  He was exposed to noise from trucks, chainsaws, and stump grinding without the use of hearing protection.  The Veteran denied recreational noise exposure, family history of hearing loss, history of ear disease or trauma, and history of head trauma. 

Upon review of the claims file and the results of the audiometric testing she performed, the examiner concluded that the Veteran's right ear and left ear hearing was within normal limits from 500 Hz through 4000 Hz, with reduced word recognition bilaterally.  The Veteran's hearing in response to puretones was normal for adjudication purposes with no significant shift in puretones from entrance to discharge.  As such, the examiner opined that the Veteran's hearing loss was less likely as not caused by or a result of military noise exposure.  

Pursuant to the June 2012 Board remand, the Veteran appeared for another VA examination in June 2015.  The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of military noise exposure, as comparison of the entrance examination to the exit examination indicated normal hearing bilaterally with no threshold shifts.

An addendum opinion was provided in May 2016.  An otorhionolaryngolist opined that neither in the left nor the right ear was hearing loss at least as likely as not (50% probability or greater) caused by or a result of an event in military service.  Based on the entrance and separation examinations, as well as review of post-service audiograms, the physician determined that much of the Veteran's hearing loss began to occur after 2006.  The physician added that the Veteran's June 2015 audiogram showed his speech discriminations scores were symmetrical and high at 96%.

In addition to the VA examinations, the medical evidence includes VA treatment records and private audiological treatment records.  None of the records discusses the etiology of the Veteran's hearing loss or provides a positive nexus opinion.  

The only other evidence that purports to link the Veteran's current hearing to his military service consists of the Veteran's lay statements, as well as several buddy statements submitted on his behalf.  Although laypersons are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a layperson, as it involves making definitive clinical diagnoses based on knowledge of audiology.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  The Veteran can certainly describe what he experiences, such as a loss of hearing acuity, and those providing statements on his behalf can describe the need to repeat statements at times.  However, these parties are not able to provide competent evidence as to the etiology of the Veteran's audiological disabilities, as providing such an opinion require medical expertise in the cause of hearing loss in the context of in-service noise exposure with delayed onset of symptoms.  None of these parties has such expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159 (a)(1) (2017).

Accordingly, the Board finds that the claim of entitlement to service connection for a bilateral hearing loss must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for bilateral hearing loss is denied. 



____________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs