Citation Nr: 1800059 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-07 043A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to November 1971, from September 1973 to September 1975 and from August 1977 to July 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran does not have right ear hearing impairment sufficient to qualify as a hearing loss disability for VA purposes. 2. The Veteran's left ear hearing loss disability is not related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. In making this statement, the Board has not ignored the September 2017 Appellant's Brief in which the Veteran contends, through his representative, that the most recent audiology compensation and pension (C&P) examination, from 2011, is too old to adequately evaluate the disability. The Veteran requested that, if the Board could not grant the claim it remand for a new examination. The Board has considered that contention and request but concludes that the claim cannot be granted and that a remand is not necessary in this case. When the Veteran filed his claim that led to this appeal, he clearly believed he had a hearing loss disability and the record shows his belief was based on sudden onset of hearing loss of his left ear only. The record does not show that anything changed since that time or that the Veteran ever developed hearing loss symptoms of his right ear. VA received the claim that led to this appeal on January 21, 2011; the claim was dated by the Veteran as January 7, 2011. In that claim, the Veteran stated that he suffered a severe hearing loss and went to VA for emergency treatment. On January 4, 2011, he sought treatment at a VA medical center emergency department for sudden loss of hearing. The note documents that he reported discomfort in his left ear. An audiology assessment consult dated January 10, 2011, documents that the Veteran reported sudden hearing loss in the left ear, with onset December 18, 2010. Audiology testing revealed high puretone threshold levels and low speech recognition for the left ear and the opposite for the right ear. The results were consistent with VA regulation (38 C.F.R. § 3.385) as to showing a hearing loss disability for the left ear and no hearing loss disability for the right ear. Followup with ENT was suggested. An ENT Otolaryngology outpatient note from two days later, January 12, 2011, documents that Veteran's report that he suffered sudden deafness on the left. In a letter dated in December 2011, a private physician, N.O., M.D., stated that the Veteran had profound hearing loss in the left ear and a history of left ear hearing loss. An audiology assessment consult from January 11, 2012 documents puretone thresholds and speech recognition results very similar to the consult testing of January 2011 and of the 2011 C&P examination. The assessment remained hearing loss in the left ear and normal hearing in the right ear. There are no other findings showing a change in the hearing of the right ear or complaints involving the right ear. Thus, all indications are that he had left ear only symptoms of hearing loss. VA has no duty to provide him with another examination because it has provided him with an examination and the record does not show that anything has changed since that examination, with regard to the right ear. Furthermore, the right ear hearing loss disability claim is denied in this decision because the nexus element is not met, not because of lack of a disability. As there are no facts unique to either ear contended regarding the alleged in-service element, it is highly likely that even if a new examination showed a right ear hearing loss disability, as defined by regulation, the nexus opinion already obtained would apply. In sum, the Board finds that the 2011 examination is adequate and no new examination is required in this case. II. Service Connection The Veteran is seeking service connection for bilateral hearing loss. The Board notes that there is an important distinction between hearing impairment and a hearing loss disability for VA purposes. The threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). 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. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Further, the requirement of a current disability is satisfied if the disability existed at the time a claim of filing of VA disability compensation or during the pendency of that claim, even if the disability resolved prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or while the claim was pending, and it may support the existence of a current disability at the time of claim filing if it was close enough in time under the circumstances of the case. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). In this case, the record does not show hearing loss in either ear within one year of the Veteran's separation from any of his periods of service. At the time of a September 1982 VA examination his hearing was normal with no hearing loss noted. Similarly, the April 1991 audiogram taken in conjunction with the Veteran's quadrennial examination showed normal hearing at all of the relevant frequencies and the April 2009 VA examination showed not abnormal ear findings. The first record of hearing loss is treatment records from December 2010, more than eighteen years after his separation from his last period of service, which note sudden onset left ear hearing loss. Thus, service connection on a presumptive basis is not warranted. A December 2010 private shows puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hz were 65, 65, 65, and 65 dB respectively. VA treatment records from December 2010 show complaints of left ear discomfort, tinnitus and hearing problems as well as vertigo and nausea for three days. A January 2011 VA treatment record includes audiometric test results for both ears. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 5, 5, 5, and 25 dB respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 30, 75, 85, 80, and 85 dB respectively. Speech recognition scores obtained using the Maryland CNC Test were 96 percent for the right ear and 28 percent for the left ear. A February 2011 private treatment record notes sudden left ear hearing loss, tinnitus, and vertigo. The Veteran's right ear had essentially normal hearing. This report includes audiometric test results for both ears. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 5, 5, 10, and 25 dB respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 20, 75, 75, 75, and 75 dB respectively. Speech discrimination scores were 92 percent for the right ear and 36 percent for the left ear. The method of determining these speech recognition scores is not identified. In a December 2011 letter, the Veteran's private physician noted left ear hearing loss and constant tinnitus. It was stated that the Veteran had to watch television and listen to the radio at lower volumes because high intensity noises caused an increase in ear pain and tinnitus. His symptoms included profound sensorineural hearing loss, poor speech recognition, and dizziness with imbalance. In November 2011 the Veteran underwent a VA audiological examination in conjunction with this claim. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed disability, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. This report includes audiometric test results for both ears. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 5, 10, 5, and 25 dB respectively. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 35, 70, 90, 85, and 85 dB respectively. Speech recognition scores obtained using the Maryland CNC Test were 100 percent for the right ear and 32 percent for the left ear. Based on the above, the record does not contain any current audiogram results or other medical evidence of right ear hearing impairment sufficient to show that the Veteran has met the requirements of 38 C.F.R. § 3.385 at any time during the pendency of this appeal. The determination as to whether his right ear hearing loss rises to the level of impairment necessary to qualify as a disability for VA purposes as opposed to a lesser degree of hearing loss requires specific objective measurements. Thus, the record does not show right ear hearing impairment that qualifies as a disability for VA purposes. By contrast, the record establishes left ear hearing impairment sufficient to qualify as a disability for VA purposes. No left ear hearing loss or complaints are noted in the Veteran's service treatment records and his hearing was consistently normal on all of his in-service audiograms. Nevertheless, his exposure to artillery noise has been conceded. The remaining question is whether the Veteran's left ear hearing loss is related to his active duty military service. To this end, the Veteran underwent a November 2011 VA examination and has submitted a December 2011 private medical opinion. The November 2011 VA examiner found that the Veteran's left ear hearing loss was less likely as not related to his military service. This examiner noted that while the Veteran was exposed to artillery noise for sixteen years in the Army, he had normal bilateral hearing during active service and at the time of the April 1991 evaluation. He had sudden hearing loss on the left ear since December 2010 and there was no evidence supporting a finding that noise exposure was the cause of this left ear hearing loss. Instead, this examiner noted that sudden hearing loss could be caused by different factors such as autoimmune diseases, vascular incidents, viral infections, etc. and noted that the Veteran had a history of diabetes. In the December 2011 opinion, the Veteran's private physician found that it was more probable than not that the Veteran's hearing loss problem was related to his noise exposure in service, noting that prolonged exposure to noises of high intensity causes permanent damage in the inner structures of the ear resulting in irreversible hearing loss. The examiner explained that the Veteran was exposed to high frequency heavy weapon noises for a considerable amount of time through his service in an armored unit and exposure to artillery noises mortars and tanks on a daily basis for hours on a same day. This led to his current hearing difficulty at certain frequencies. Of these opinions, the Board finds the November 2011 VA opinion most probative. While the private examiner discusses the relationship between high frequency noise exposure and hearing loss, it describes the Veteran's left ear hearing loss and tinnitus as getting worse with time and fails to address the medical records that instead show a sudden onset of left hearing loss in December 2010. By contrast, the November 2011 VA opinion provides some examples of factors that could account for sudden onset hearing loss, which do not include a remote history of prolonged high frequency noise exposure. As such, the Board find that November 2011 VA opinion more probative. Insofar as the Veteran believes that his current left ear hearing loss is causally related to his military service, the Board notes that the Veteran is competent to provide lay etiology in the case of a relatively simple set of facts, such as an immediately observable cause and effect relationship, this is not the type of relationship described. Instead, the contemporaneous medical evidence shows no left ear hearing loss complaints until December 2010 when the Veteran experienced severe hearing loss accompanied by pain, vertigo, and nausea. Thus, the Veteran is not competent to provide a lay opinion in this case. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs