Citation Nr: 1800397 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-25 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel INTRODUCTION The Veteran had active duty from March 1969 to December 1971, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. By the March 2013, September 2015 and September 2016 Remands, the Board sought further development regarding the etiology of the Veteran's service connection claims for tinnitus and hearing loss. At the time of the September 2016 Remand, the issue of entitlement to service connection for tinnitus was on appeal. In a December 2016 rating decision, the RO granted service connection for tinnitus. This constitutes a full grant of the benefit sought and the issue is no longer before the Board. In September 2012, the Veteran had a Travel Board Hearing before a Judge who is not available to participate in the instant appeal. VA law requires that the Veterans Law Judge who conducts a hearing on an appeal to participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). In September 2017, the Board notified the Veteran that the Judge who held the September 2012 hearing was unavailable. In October 2017, the Veteran informed the Board that he declined the option to have a subsequent hearing and asked that his case be considered based on the evidence of record. FINDINGS OF FACT Bilateral hearing loss did not manifest in service or within one year following service, and the weight of the probative evidence is against the claim. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that the VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA has satisfied the duty to notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. The Veteran was provided required notice in May 2008 and April 2013. The VA has satisfied the duty to assist. The record shows that VA has undertaken all necessary development action. The claims folder includes service treatment records (STRs), military personnel records, VA treatment records, and private medical records. Additionally, the Veteran was afforded a VA examination. Based on a review of the record, the Board finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). At this time, the Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate his hearing loss claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. Service Connection The Veteran contends that his hearing impairment was caused by his military service, inclusive of operating the heavy equipment without proper hearing protection, and sustaining various artillery attacks and small arms fire during hostile engagements. The Veteran testified to artillery attacks during service, and in particular described one attack resulting in him being unable to hear anything for several minutes after artillery fire had ceased. BVA Hrg. Tr. at 7 (Sept. 20, 2012). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 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 that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). To establish a right to compensation for a direct service connection disability, the Veteran must show: (1) the existence of a current 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)). Service connection may be presumed for certain chronic diseases, including sensorineural hearing loss, which develop to a compensable degree of 10-percent within one year after discharge from service, even where there is no evidence of such disease during the veteran's period of service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). However, such presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R.§§ 3.307, 3.309(a) (2017). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b) (2017). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations codify when hearing loss is considered a disability for VA purposes. Pursuant to 38 C.F.R. § 3.385, hearing loss will be considered a disability under the following three scenarios: "[W]hen the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385 (2017). The absence of in-service evidence of hearing loss disability during a veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. at 159 (1993). The Veteran has a current hearing loss disability pursuant to 38 C.F.R. § 3.385. See 2016 VA Examination. Additionally, the Veteran experienced acoustic trauma in service. The Veteran's DD-214 reflected service in Vietnam and the MOS of Engineer Equipment Maintenance. The Board finds the Veteran's statements about his experiences to be credible and consistent with the places, types, and circumstances of his service. Accordingly, noise exposure is acknowledged. See 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2017). There is no evidence of a diagnosis of hearing loss in service. In addition, there is no evidence that hearing loss manifested to a compensable degree within one year after separation. The Veteran did not have hearing loss at separation. On the separation audiogram in November 1971, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 0 --- 0 LEFT 15 10 0 --- 20 Subsequently, the earliest post service audiogram in the record from September 1983 does not constitute hearing loss for VA purposes, pursuant to Section 3.385. The Veteran reported that he never wore hearing protection. He also reported having 20 years of noise exposure from hunting and power boats/cycles and 4 years from home tractor/machinery. The pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 8 7 4 0 9 LEFT 14 7 6 6 35 Based on the above audiograms, it cannot be said that compensable hearing loss manifested within one year following service. As such, a bilateral hearing loss disability may not be presumed to have been incurred in-service Further, the weight of the evidence is against the Veteran as to whether his bilateral hearing loss is related to active service. The record does not establish a continuity of symptomology following service to establish nexus. While the private September 1983 audiogram was for all purposes normal, with the exception of some hearing impairment in the left ear at 4000 dB, the eleven year gap in the record does not establish that hearing loss symptoms occurred during this time frame, especially in light of the Veteran's post service civilian occupational noise exposure. Indeed, the Veteran's military separation audiogram in November 1971 represented normal hearing and there were no complaints of hearing loss related to service until the Veteran's claim for VA benefits in April 2008, more than 30 years after discharge from service. In addition, the record contains two, separate negative medical opinions. Both opinions concluded that the Veteran's hearing loss occurred after service. The October 2016 VA examination report concluded that hearing loss occurring after military service was well documented with the Veteran's separation audiogram being normal in both ears, and the first diagnosed of hearing loss occurring in September 1983 in the left ear only. See 2016 VA Examination at *7. The report further found that the Veteran had significant post-service noise exposure including 371/2 years of factory work, lawn care, and wood working. Id. Similarly, the February 2017 VA examination addendum opined that while the Veteran's hearing loss is consistent with noise-induced hearing loss, the evidence clearly supports that it was not incurred in service, but rather occurred after his service and that his hearing loss was likely due to civilian occupational noise exposure from his work in manufacturing. See 2017 VA Addendum at *3. In contrast, the Veteran opines that his hearing has not been the same since service in Vietnam. See, e.g., BVA Hrg. Tr. at 7 (Sept. 20, 2012); Statement in Support of Claim (April 2013). The Veteran further opines that his post-service noise exposure in the factory where he worked was "just mostly a steady hum" and that he always wore ear protection at work. BVA Hrg. Tr. at 12 (Sept. 20, 2012). While the Veteran is competent to opine that his ability to hear has diminished following various events he experienced in service, as well as describe the nature of his current hearing loss, and express his belief that his current hearing loss is related to service, his opinion is outweighed by the probative opinion of medical professionals. Both medical opinions considered all the evidence of record, to include the long history of post service noise exposure, and attributed the Veteran's hearing loss to his post-service noise exposure in civilian manufacturing work, which the Veteran performed for over three decades. Further, in this case, the Board finds that determining the etiology of the Veteran's current bilateral hearing loss disability is not within the realm of knowledge of a non-expert given the exposure to noise in service, the normal hearing found in service, the long period of time before hearing loss was noted after service, and the Veteran's significant post service noise exposure. As the evidence does not show that the Veteran has expertise in medical maters, more weight must be given to the two medical opinions, over the Veteran's lay statements regarding the cause of his hearing loss. When considering the probative value of medical opinion evidence, the Board considers the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that the VA opinions are adequate and of significant probative value as they consider the relevant evidence of record as it pertains to the Veteran's hearing loss disability and includes adequate reasons and bases for the opinions rendered. Moreover, neither the Veteran nor his representative has identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). For the foregoing reasons, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of service connection. Because the preponderance of evidence weighs against the claim, the benefit of the doubt doctrine does not apply and the Veteran's claim for service connection for bilateral hearing loss is denied. 38 U.S.C. §5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs