Citation Nr: 1756732 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-42 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision that denied service connection for a bilateral hearing loss disability. The Board remanded the issues on appeal for additional development in November 2013. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a travel board hearing at the RO. A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran's representative submitted an appellate brief in November 2017 and indicated that the Veteran desired an additional hearing for the same issue for which a hearing had already been provided in December 2012. There was no indication of any change in circumstances or other pressing reason to provide an additional hearing. In this regard, the Board notes that in Cook v. Snyder, the United States Court of Appeals for Veterans Claims (Court) found that under 38 U.S.C. § 7107(b), a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following this Court's remand of the same claim. See Cook v. Snyder, 28 Vet. App. 330 (2017). The Court determined a claimant is not limited to only one Board hearing during the entire course of appellate proceedings when an additional hearing is warranted based on the evidence, to more specifically include a change in circumstances, such as new representation or other deficiency. Id. Here, however, the record does not reveal any change in circumstances warranting a new hearing, as the Veteran's representation remains the same. Furthermore, the Veteran has had ample opportunity afforded him to submit additional evidence after the last Board hearing and has done so on several occasions since. There is no indication that the decision to not provide an additional Board hearing would prejudice the Veteran in any way. Absent a showing of a substantial need or change in circumstances, the Board shall proceed in its adjudication without an additional hearing. FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. 2. The Veteran's service personnel records demonstrate that he served as an aircraft mechanic, a military occupational specialty consistent with exposure to loud noises from military jet aircraft. 3. The clinical onset of the Veteran's hearing loss disability was not within his period of active service or within one year of his separation from service. 4. A bilateral hearing loss disability manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by service, and such service incurrence may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide notice to the Veteran explaining how to establish entitlement to benefits. 38 U.S.C. § 5103 (West 2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA satisfied this duty with a January 2010 pre-adjudication letter. The evidence of record includes service treatment records, VA treatment records, private treatment records, testimony from the Veteran, and lay statements. Nothing in the record identifies additional, potentially relevant records that could be obtained. Therefore, VA has also complied with its duty to obtain available records. 38 U.S.C. § 5103A. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA audiological examinations in March 2010 and December 2013. The examinations were adequate because the hearing results were determined using a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test were provided, the tester was a state licensed audiologist, the opinion noted the effect of the hearing loss disability on the Veteran's daily functioning, and in the latter examination, the examiner provided underlying rationales for her opinions. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); 38 C.F.R. § 4.85. The duty to assist includes providing an examination when the record indicates a claim may have merit but is insufficient to decide the matter. 38 U.S.C. § 5103A. In its November 2013 remand, the Board found the March 2010 VA examination inadequate and instructed that a new examination be conducted and a new opinion be obtained as to the nature and etiology of the Veteran's hearing loss. For the reasons discussed below, the Board finds that the December 2013 VA examination and opinion is adequate and complies with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss and tinnitus can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be 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. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. III. Bilateral Hearing Loss Disability The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability. VA audiological examinations from March 2010 and December 2013 note that the Veteran has bilateral hearing loss that is considered disabling for VA purposes. 38 C.F.R. § 3.385. 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, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Further, the Veteran has stated that during his service he was exposed to significant levels of noise. Specifically, he has argued that his occupational specialty as an aircraft mechanic at a major Air Force fighter base consistently exposed him to turbine engine noise, especially high frequency noise, from military jet airplanes. Further, there is no evidence that the Veteran's statements concerning noise exposure are not credible. As such, noise exposure in service has been shown. See 38 U.S.C. § 1154(a). As noted in the statement of the case, the Veteran served as an aircraft mechanic and noise exposure during service is conceded. The Veteran had a December 2012 hearing before the undersigned VLJ, where he testified that his hearing loss was a result of his military service in the Air Force serving as an aircraft mechanic. The Veteran went on to testify that he had normal hearing prior to his military service, but that working around FB-111A jet airplanes had degraded his hearing, even though he wore hearing protection while in service, and that his hearing got worse over the years. Further testimony from the Veteran indicated that after military service, he held jobs that did not stress his hearing and therefore did not require hearing protection. The Veteran indicated he first sought treatment for his degraded hearing in 2010 when he noticed he was having a hard time hearing people in normal circumstances, that he had to ask people to repeat what was just said, and that he had to turn up the television sound fairly loud to understand it. VA at the time provided hearing aids to the Veteran, which he has worn since. The Veteran finished his testimony by noting during his active service that his aircraft had a "high frequency noise to them," and "that it was possible that we would have a hearing problem later on in life." The Veteran had in-service audiological evaluations in June 1968 and August 1972, at which time auditory thresholds were recorded, using International Organization for Standardization (ISO) units. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The service treatment record include an June 1968 entrance examination which included audiometric testing which showed puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, were respectively 0, 0, 10, 10, and 0 in the right ear and 0, 0 10, 5, and 5 in the left ear. Audiometric testing in August 1972 showed puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, 4000, and 6000 Hertz, as converted to ISO units, were respectively 5, 5, 15, 15, 5, and 5 in the right ear and 15, 5, 25, 15, 15, and 5 in the left ear. Turning to the medical evidence, the Veteran was provided with a VA audiology examination in March 2010, where the examiner noted that the Veteran had hearing loss and tinnitus at a level considered by VA to be disabling. However, the examiner opined that the Veteran's hearing loss was less likely than not (less than 50 percent probability) to be caused by or a result of an event in military service. The examiner noted that the Veteran's hearing was within normal limits at entrance and separation with no significant threshold shift. The examiner mentioned the hearing loss was first reported "ten to fifteen" years ago and was therefore not a result of military service, noting additionally the Veteran specifically denied any current or past hearing loss on his 1972 separation report of medical history. However, this opinion did not consider the Veteran's credible lay testimony of having been exposed to aircraft with really high frequency noise, and that his level of exposure to noise post-service was "nothing like what it was working around the airplanes." There is no evidence that the examiner was not competent or credible, but as the conclusory opinion did not consider the Veteran's lay statements and was based on an incomplete review of the record, the Board finds it is entitled to only limited probative weight. Nieves-Rodriguez, 22 Vet. App. 295. The Veteran received another VA audiological examination in December 2013. Here, once again, VA found the Veteran's bilateral hearing loss to be disabling for VA purposes. In an opinion, the examiner stated that the Veteran's bilateral hearing loss was less likely than not caused by or as a result of military service. The rationale was that the Veteran's service medical records showed hearing within normal limits at separation, less one frequency in the left ear, and no significant hearing threshold shifts, bilaterally, during his military service. The Board notes the Veteran's DD 214 record of military service shows his duty Air Force Specialty Code to be an aircraft mechanic for F/FB-111A aircraft, a fact reiterated during the Veteran's December 2012 testimony with the undersigned VLJ. The Veteran provided a lay statement in October 2014 where he attributed his hearing loss to noise levels while servicing U.S. Air Force aircraft. The Board thus finds the Veteran's hearing testimony regarding his active duty service as an aircraft mechanic and exposure to extremely loud noises, to include high frequency noises as noted, and his consistent lay statements to have substantial probative weight regarding his noise exposure during service. The Board also notes from his hearing testimony that the Veteran was not exposed to harmful noise in his post-military service occupations, and that his only life exposure to harmful noise was his active service. The record establishes the Veteran has current hearing loss considered disabling for VA purposes, and the Board has conceded hazardous noise exposure while in service. However, the record contains conflicting evidence as to whether the Veteran's hearing loss is related to service. The preponderance of the evidence is against the Veteran's claim of service connection for hearing loss. The Veteran's testimony before the undersigned VLJ and his lay statements contrast with two negative nexus opinions from VA examiners. The Board notes there is no additional evidence in the Veteran's favor that establishes a nexus between the noise exposure in service, and the current hearing loss of the Veteran. The Board may not reject medical opinions based on its own medical judgment. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Ultimately, in weighing medical evidence, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). To the extent that the Veteran has asserted his personal belief that there exists a medical relationship between his hearing loss and his service, this provides no basis for allowing the claim. The Veteran is a lay person and is not medically trained and competent to assert an opinion regarding the nexus of his in-service exposure and current hearing loss first evaluated 38 years after service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). See also Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a long period of time post-service without symptoms may be used to infer a lack of nexus). Hence, the Veteran's lay belief regarding nexus has no probative value on the facts of this case. Thus, the preponderance of the evidence is against a finding of a nexus between the current disability and the in-service noise exposure, and therefore service connection for a bilateral hearing loss disability is not warranted on a direct basis. 38 C.F.R. § 3.303. Bilateral hearing loss is considered an organic disease of the nervous system, and therefore service connection based on the presumption in favor of chronic diseases and continuity of symptomatology are potentially applicable. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. However, the Veteran's service treatment records are silent for a diagnosis of bilateral hearing loss during service and in-service audiograms were within normal limits. See 38 C.F.R. § 3.385. Significantly, the Veteran has not specifically asserted a continuity of symptomatology existing since service, only his lay assertions of the belief that his hearing loss is related to service. The Veteran specifically denied any current or past hearing loss at separation in May 1972. There are no private treatment records after that time that suggest the Veteran has any hearing disability until 2010. Specifically, the first evidence of hearing loss is an assertion by the Veteran that he first received hearing aids from VA in 2010, approximately 38 years after his separation from service. As there is no competent and credible evidence of sufficient manifestations of bilateral hearing loss either during service or within the first post-service year, or of a continuity of symptomatology since service, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. Although the Veteran has established a current disability and the Board concedes in-service exposure to hazardous noise, the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss disability is causally related to his service or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs