Citation Nr: 1801264	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  16-26 341	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

N. Rippel, Counsel



INTRODUCTION

The Veteran served on active duty from September 1958 to September 1961.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

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).


FINDING OF FACT

A bilateral hearing loss disability was not manifested during active service or within one year of separation and is not attributable to active service.


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by active service, and an organic disease of the nervous system (bilateral hearing loss disability) may not be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).








REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

      A.  Duty to Notify

The duty to assist was satisfied by notices included in the Fully Developed Claim (VA Form 21-526EZ) acknowledged by the Appellant in his October 2013 claim.  

      B.  Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c).  The RO associated the Veteran's VA treatment records, service treatment records and service personnel records with the claims file.  No other relevant records have been identified and are outstanding.  The Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

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).  The Veteran was provided with VA audiology examination in July 2014, and an addendum opinion was obtained from the audiologist in December 3015.  A prior report of examination in March 2014 does not contain any substantive findings, and is considered inadequate and as such will not be considered.  The July 2014 and December 2015 examination reports and opinions together are adequate because the examiner considered and addressed the Veteran's contentions, accepted in-service noise exposure, reviewed the record and conducted thorough medical examination of the Veteran.  Although the Veteran's representative urges that the opinion is inadequate, citing that both hearing loss and service-connected tinnitus stem from the same in-service acoustic trauma, the Board disagrees, and finds that the opinion is well supported.  The July 2014 and December 2015 examination and opinion reports are thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claims of service connection.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Since VA has obtained all relevant identified records and provided adequate medical examinations where necessary, the duty to assist in this case is satisfied.

II.  Service Connection Claims

The Veteran contends that he has hearing loss related to in-service acoustic trauma.  He asserted in his October 2013 claim, his October 2014 notice of disagreement and his June 2016 VA form 9, substantive appeal, that his hearing loss has been continuous since service.  He asserts that, during any post-service noise exposure, he has always worn adequate hearing protection.  

      A.  Law

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).  The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (such as sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307 (a), 3.309(a). 

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause.  38 C.F.R. § 3.303 (b).  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

      
      
      
      B.  Facts and Analysis

The Board concedes that the Veteran has a current bilateral hearing loss disability as set forth at 38 C.F.R. § 3.385.  The Board also concedes that as a light weapons infantryman in an ordinance company, he was exposed to noise trauma in service.  Thus, the only issue before the Board is whether there is a nexus between Veteran's bilateral hearing loss disability and his period of active service.  

As explained below, the weight of the evidence compels the conclusion that the Veteran's current bilateral hearing loss is not causally related to service, including the acknowledged in-service noise exposure.  

The Veteran has a diagnosis of bilateral sensorineural hearing loss reflected in the July 2014 VA audiological examination report.  There is no other treatment noted.  The Veteran did not report that he had any treatment for hearing loss in his claim filed in October 2013.  

Service records reveal hearing within normal limits throughout military service, with no complaints, and a denial of ear trouble both at entrance in September 1958, and at separation examination in September 1961.  An audiogram at separation showed that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
-
15
LEFT
15
15
15
-
15

The VA examiner in July 2014 reviewed the claims folder and conducted an in-person interview of the Veteran.  Audiology testing showed that puretone thresholds, in decibels, were as follows:







HERTZ




500
1000
2000
3000
4000
AVG
RIGHT
25
40
60
65
70
59
LEFT
40
65
65
65
65
65

Speech audiometry revealed speech recognition ability of 90 percent bilaterally.  

The VA examiner concluded that neither right nor left ear hearing loss was at least as likely as not (50% probability or greater) caused by or a result of an event in military service.  She observed that there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for either ear.  In supporting her assessment, she noted the Veteran's service in Germany, MOS of infantry and work in ordinance.  She noted that he spent a lot of time around weapons during his service, observing he was in a "Best Weapons" competition, and a 3.5 rocket launcher near him detonated incorrectly and knocked several people around him to the ground and put shrapnel in one man's shoulder.  She noted his reported decrease in hearing for days and constant tinnitus for approximately 1 month after the event, after which tinnitus turned intermittent.  He was reportedly not wearing hearing protection during the incident.  He reported that he did not visit sick call after this event, and "the event was terminated from that time on."  He reported to the examiner occupations as a sheet metal worker, without hearing protection, for 17 years, and at Lake City Ammunition plant for 24 years, with hearing protection.  It was noted that the service entrance evaluation Whisper Test was no longer valid and the service separation evaluation showed hearing thresholds within normal limits bilaterally.  The examiner noted also that service treatment records do not document and concern, diagnosis, or treatment of hearing loss.  The examiner stated she was, "not denying exposure to noise, rather stating that the exposure did not result in hearing loss that meets criteria for service connection.  When evaluating his current degree of hearing loss, one cannot rule out contributions from his civilian occupation and the aging process."  

Thereafter, the audiologist was asked by the RO to clarify why the conceded noise exposure did or did not result in the currently diagnosed hearing loss.  

The examining audiologist responded in a December 2015 report.  She noted the Veteran's service separation audiogram.  She observed that while the Veteran reported a military noise-exposure event, he indicated his hearing returned to normal, and was not permanently changed, also known as a temporary threshold shift.  On his separation evaluation, he marked "no" to "ear, nose, and throat" concerns, and he wrote "excellent health" on his form.  

Her rationale continued as follows:

Institute of Medicine (2005) concluded that based on current knowledge of cochlear physiology there is insufficient scientific evidence for delayed-onset hearing loss secondary to military noise exposure. Hearing loss should occur at the time of the exposure. There is not sufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop long after cessation of noise exposure. The available anatomical and physiologic evidence suggests that delayed post-exposure noise induced hearing loss is not likely. If hearing is normal on discharge AND there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. There is no nexus between any current hearing loss and military service, regardless of the cause of the hearing loss.

The preponderance of the evidence is against a finding that hearing loss disability was present in service.  It is uncontroverted that bilateral hearing loss disability was not documented in service.  Diagnosis of this disability was not made until decades after service, and despite the Veteran's assertions, there is no treatment prior to the date of claim decades after separation.  The Board emphasizes the multi-year gap between discharge from active duty service (1961) and evidence of disability, even via the Veteran's complaints, in approximately 2013/2014.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for disability can be considered as a factor in resolving claim).  Thus, with post-service medical records showing that sensorineural hearing loss was noted in the record not before 2014, hearing loss has not been shown to manifest within one year after separation from service, and the applicable presumption does not apply under 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309.  The Board also notes that although sensorineural hearing loss is an enumerated chronic disease, it was not noted or diagnosed during service or within one year after separation.  As the evidence establishes that the Veteran did not have characteristic manifestations of the disease process during service or within one year after separation, service connection under 38 C.F.R. § 3.303 (b) is not applicable.

A veteran is competent to give evidence about what he or she has experienced or observed.  Layno v. Brown, 6 Vet. App. 465 (1994).  Under certain circumstances, a layperson is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran argues, since October 2013, that hearing loss was present since service.  He is competent to assert that he noticed decreased hearing since an episode of acoustic trauma in service.  

The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009).  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  
	
The Board finds that his assertion that hearing loss disability has been present since service is outweighed by the other competent and credible evidence of record.  First, he himself denied ear trouble at separation, and his hearing was measured as normal.  Second, he did report his reduction of hearing acuity (for example, to primary care providers) or seek treatment for or otherwise document hearing loss for the next 50 years and has produced no evidence in support of his assertion, while the actual evidence again shows he did not report or demonstrate hearing loss at separation.  Third, the VA examiner, who accepted the Veteran's in-service trauma and considered his assertions, rendered an opinion that is wholly against this theory.  The Board finds the VA opinion highly probative because the examiner supported the conclusions with an adequate rationale and citation to medical literature.  The Board finds the VA examiner's conclusions more probative than the other evidence of record.  

Based upon a review of the record, the preponderance of the evidence is against the claims of entitlement to service connection for bilateral hearing loss.  Therefore, although it has been carefully considered in this case involving lost records, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise.  The benefits sought on appeal are accordingly denied.  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).


ORDER

Service connection for bilateral hearing loss disability is denied.




____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs