Citation Nr: 1801249 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-43 423 ) 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 Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 until April 1969. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran testified before the undersigned Veterans Law Judge in October 2017. A transcript of the hearing has been associated with the record. FINDING OF FACT The Veteran's bilateral hearing loss is not causally or etiologically related to his military service, to include noise exposure therein. CONCLUSION OF LAW The criteria for establishment of service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection The Veteran asserts his bilateral hearing loss is related to service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2017). Certain chronic diseases, such as sensorineural hearing loss, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For VA purposes, impaired hearing is considered disabling 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 Court of Appeals for Veterans Claims has endorsed VA's interpretation of the law which indicates that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988)). When the audiometric test results at a Veteran's separation examination do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. Here, the record reflects the Veteran has bilateral hearing loss that is disabling for VA purposes. He attributes his bilateral hearing loss to noise exposure during service, where he worked as a combat engineer in the Army. Although he did not make any hearing-related complaints during service, the Board concedes his position as a machinists mate provided noise exposure based on the noise exposure coding of his position as "highly probable." In September 1968, his entrance examination showed normal hearing. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 0 5 LEFT 10 0 0 0 0 In addition, his February 1969 separation examination also reflected normal hearing. In fact, it appears to show a minor improvement in some decibels, while a slight degree of worsening at 4000 Hz in the right ear. HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 10 LEFT 0 0 0 0 0 In March 2013, a private audiogram showed hearing loss with pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 50 60 LEFT 15 10 30 40 55 Speech discrimination was 60 percent in the both ears. However, the test results did not provide any analysis. In May 2013, the Veteran was afforded a VA audiology examination. The VA examiner diagnosed normal to bilateral sensorineural hearing. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 30 55 60 LEFT 15 15 35 55 60 Speech discrimination was 96 percent in the both ears. The examiner found the Veteran's bilateral hearing loss was less likely than not caused by service because the Veteran's civilian occupation contributed to his possibility of hearing loss. In addition, there were not significant shifts in hearing between his enlistment and separation audiograms. The Board notes that this indicates a lack of worsening from the beginning of service to the end of service, according to audiometric testing. The examiner concluded that the military noise exposure was not the predominant contributor of his hearing impairment. There is no other evidence addressing a relationship to service. During his VA examination, the Veteran reported significant post-military noise exposure, without hearing protection: Post Military Noise Exposure: Parks & Recreation for 12-13 years. While working in Parks & Recreation he collected trash, fixed swings, lined the baseball field, mowed, etc. He denied the use of hearing protection. "Black topping" for 1 year. Denied the use of hearing protection. Worked for the State of New York laundry department for 1 year. Denied the use of hearing protection. (emphasis added). Hearing loss for VA disability purposes and its etiology is a complex medical determination that requires medical/audiological expertise that the Veteran does not possess. As discussed during the Veteran's hearing, there is a probative negative nexus opinion. There is no probative additional support for the claim, other than the Veteran's lay statements. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds the evidence in this case does not reach the level of equipoise. See Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Rather, the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs