Citation Nr: 1757732 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 12-27 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: American Legion ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served in the United States Army from March 1976 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. The Veteran's file has since been transferred to the RO in Buffalo, New York. The Veteran was first denied service connection for his bilateral hearing loss in July 1993. That rating decision became final as the Veteran did not timely perfect his appeal. However, the matter was reopened by the Board in September 2016 and remanded to RO for further development. The matter is now back before the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran's right ear conductive hearing loss is not causally or etiologically related to his military service, to include noise exposure therein. 2. The Veteran's impaired hearing in the left ear does not meet the criteria for hearing loss to be considered a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records and private treatment records have been obtained. In the September 2016 Board remand, RO was instructed to acquire treatment records from VA treatment facilities in Castle Point, New York, Albany, New York, and Brecksville, Ohio. While treatment records were obtained from the VA treatment facilities in New York, the Brecksville treatment records were not found. The Veteran was notified of the missing Brecksville records by a letter dated February 2017. The latter also provided that further attempts to find them would be unsuccessful. The Veteran was offered the opportunity to testify before the Board, but he declined. The Veteran was also provided with several VA examinations in connection to his claim. It is noted that the Veteran failed to attend his VA examinations, without showing good cause, in 1993 and again in November 2010. Another examination was promptly scheduled for him. Neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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, 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran contends that he sustained bilateral hearing loss as a result of his military service. Prior to entering service, the Veteran's did not report any hearing problems, evidenced by his service treatment record dated March 1976. At his separation examination, the Veteran's report of medical history dated October 1977 later revealed a complaint of hearing loss. However, audiometric testing at the time of his separation revealed normal audiological findings. At the separation physical in October 1977, the results of audiometric testing showed the following, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 - 5 LEFT 20 10 10 - 5 The Veteran's MOS show that he performed duties as an Indirect Fire Crewman. Thus, it is conceded that the Veteran was exposed to some degree of military noise. The Board also acknowledges that within a year of separation, the Veteran filed a claim for service connection for hearing loss in April 1978. However, the Veteran failed to report to a scheduled examination that was needed to evaluate his hearing loss claim, and his claim was denied. Based on a September 2010 and 2011 VA treatment record, the Veteran had complained of hearing loss 20 years earlier and reported worsening hearing loss, especially in his right ear. The September 2010 VA treatment record reflected that the Veteran had reported decreased hearing due to military noise exposure from fired mortars and that he had not worn hearing protection at the time. He stated that he noticed hearing loss in 1978, within a year of separation from service. He denied occupational and recreational noise exposure. Upon examination, the VA physician reported that the Veteran scored a 22, suggesting a moderate self-perceived hearing handicap, which made the Veteran a good candidate for hearing aids. The examiner concluded that the results did not suggest a conductive component to the Veteran's hearing loss at several frequencies. Therefore, the Veteran was recommended to return to the clinic for another hearing check. The Veteran underwent a VA audiological examination in April 2013. His puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 40 40 LEFT 0 5 10 10 Speech audiometry revealed speech recognition of 98 percent in the right ear and 100 percent in the left ear. The puretone threshold average was 40 decibels in the right ear and 6 (6.25) decibels in the left ear. The examiner concluded that the Veteran had conductive hearing loss in his right ear and opined that it is less likely than not caused by his military service. In his rationale, the examiner explained that the Veteran's hearing was normal at the time of separation. Additionally, during the examination, the Veteran reported that he noticed hearing loss in 2003, approximately 10 years prior. This is inconsistent with past reports, where the Veteran reported hearing loss within one year after service. As for his left ear, the VA examiner found that the Veteran did suffer from sensorineural hearing loss. But while the Veteran may have impaired hearing, the results did not meet the criteria to be considered a disability for VA purposes. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded another audiological examination in November 2016. His puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 50 45 55 LEFT 0 10 15 25 Speech audiometry revealed speech recognition of 100 percent in both ears. The puretone threshold average was 47.50 decibels in the right ear and 13 (12.50) decibels in the left ear. The November 2016 VA examiner concluded that the Veteran suffers from conductive hearing loss in the right ear and that it is less likely than not related to his military service. The examiner explained that the Veteran's audiological examination during separation showed no hearing loss and that his current conductive hearing loss is not consistent with hazardous noise exposure. The examiner added that the Veteran was unable to provide a history of disease or injury during his service which would have caused the conductive hearing loss. As for his left ear, the examiner found that while sensorineural hearing loss is present, it fails to meet the criteria to be considered a disability for VA purposes. The Board acknowledges the Veteran's consistent and continuous complaints of hearing loss beginning from his separation examination and continued years post service. While sensorineural hearing loss may be subject to service connection based on continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. 3.309(a), the Veteran's left ear does not demonstrate hearing loss for VA purposes. Conductive hearing loss on the other hand, is not subject to service connection based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is considered competent to describe his perception of diminished hearing acuity because lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, even to the extent the Veteran would be competent to report diminished hearing acuity at separation, he would not be competent to diagnose hearing loss for VA purposes as such a determination would require both objective audiometric and speech recognition testing, which the Veteran could not perform on himself. He is also not competent to offer an opinion concerning the etiology of his hearing loss because such question is not amenable to lay observation alone and is too complex to be addressed by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, audiometric testing was conducted at separation, but did not show hearing loss in either ear. This severs any argument that hearing loss was continuous since service. Multiple VA examiners were asked about the etiology of the Veteran's hearing loss in his left ear, but they consistently found that it neither began during nor was otherwise caused by his military service As noted above, the VA examiners' opinions are the most probative evidence of record as to the etiology of the Veteran's hearing loss. Based on this conclusion, the evidence is against a finding that the Veteran's bilateral hearing loss either began during or was otherwise caused by his military noise exposure. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs