Citation Nr: 1801408 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-03 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for right ear hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1986 to November 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned at a July 2013 videoconference hearing. A transcript of that hearing is of record. In June 2017, the Board remanded the claim for further development. In light of the addendum opinion obtained, and the further adjudicatory actions taken by the RO, the Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. The Veteran was exposed to hazardous noise during active service. 2. The preponderance of the evidence is against a finding that right ear hearing loss disability was caused or aggravated by in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification requirements were met in correspondence to the Veteran dated in October 2009 VA has done everything reasonably possible to assist the Veteran with respect to the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA and private health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has been provided with multiple VA examinations, most recently in June 2017. The examiners reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the VA examination reports are adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). 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). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). 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 (2017). The failure to meet these criteria at the time of a veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant may establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. 38 C.F.R. § 3.303 (2017); Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran contends that he has right ear hearing loss due to noise exposure in service. At a July 2013 hearing, the Veteran testified that he was exposed to loud noises, including jet engine noise, during the completion of his duties as an aircraft maintenance specialist in service. The Veteran's service separation form confirms that the Veteran served as an aircraft maintenance specialist. The noise exposure described by the Veteran is consistent with the circumstances of his service. Therefore, the Board concedes the Veteran's exposure to hazardous noise during active service. Recent VA examinations show that the Veteran has auditory thresholds of greater than 40 decibels at the 2000, 3000, and 4000 Hertz frequencies in the right ear. Therefore, the Veteran has right ear hearing loss for VA purposes, and a current disability exists. 38 C.F.R. § 3.385 (2017). At a January 2010 VA examination, the examiner diagnosed sensorineural hearing loss in the right ear. The examiner noted that the Veteran's induction examination in May 1986 showed that hearing was not within normal limits in the right ear. However, subsequent hearing evaluations in service showed that the hearing loss in the right ear remained stable through active duty service. The examiner opined that since hearing loss due to noise exposure occurs at the time of exposure, the current hearing loss was not likely due to the Veteran's in-service noise exposure. In a July 2010 private medical record, the Veteran had a consultation for hearing loss. The examiner noted a history of loud noise exposure in the military, and diagnosed a chronic hearing loss pattern suggestive of noise induced hearing loss. At a January 2011 VA examination, the examiner diagnosed sensorineural hearing loss in the right ear. The examiner noted that the Veteran had some amount of hearing loss in the right ear upon induction, but that tests throughout service showed no significant worsening of hearing acuity when compared to the initial audiological examination. The examiner opined that the current right ear hearing loss was not caused or aggravated by in-service noise exposure since hearing loss due to noise exposure occurs at the time of the exposure and not subsequently, and in-service audiograms showed no significant worsening of hearing in the right ear. In a February 2012 private medical letter, the Veteran's doctor stated that the Veteran had been evaluated for chronic hearing loss. The doctor diagnosed the Veteran with noise-induced hearing loss, and opined that it most likely developed from the Veteran's time servicing aircraft in service. At an October 2014 VA examination, the examiner diagnosed sensorineural hearing loss in the right ear. The examiner noted that the audiometric examination conducted in September 1993 at separation from service did now show any significant change or worsening of hearing in the right ear when compared to the hearing test completed at the time of induction in May 1986. Further, the examiner noted that the hearing test given to the Veteran in October 1987 after the Veteran experienced noise exposure in service showed no significant shift in hearing in the right ear. The examiner opined that, since hearing loss due to noise occurred at the time of the exposure and not subsequently, the Veteran's current hearing loss in the right ear was not caused by active duty noise exposure. For the same reason, the examiner opined that the right ear hearing loss, which existed prior to service, was not aggravated beyond its normal progression by service. In a June 2017 VA medical opinion, the examiner opined that the Veteran's right ear hearing loss clearly and unmistakably existed prior to service, as evidenced by the May 1986 induction audiometric examination. The examiner further opined that the right ear hearing loss was clearly and unmistakably not aggravated beyond its natural progression by in-service noise exposure because multiple audiometric findings in service, including after noise exposure, did not show significant change in hearing when compared to the enlistment exam, and hearing loss due to noise exposure occurs at the time of noise exposure, and not subsequently. The Board finds that entitlement to service connection for right ear hearing loss disability is not warranted in this case. At a May 1986 audiology examination conducted at enlistment, audiometric pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 35 20 The May 1986 induction audiometric examination suggests that the Veteran may have had some hearing loss prior to entering service. A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 C.F.R. § 3.304(b)(1) (2017). Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. Once the presumption of soundness has attached, VA holds the burden of proving by clear and unmistakable evidence that (1) the Veteran's disease or injury pre-existed service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C § 1111 (2012). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (2012). VA examiners in January 2010, January 2011, and October 2014 all opined that the Veteran had some hearing loss in the right ear prior to service, as shown by the audiology examination at enlistment. In a June 2017 medical opinion, a VA examiner opined that the hearing loss in the right ear clearly and unmistakably existed prior to entering service, as the Veteran's entrance exam showed hearing loss at the 3000 and 6000 Hertz level. However, the pure tone thresholds at entrance did not meet the criteria for disability for VA purposes. 38 C.F.R. § 3.385 (2017). Therefore, no hearing loss disability was shown at entrance to service and the Veteran was presumed sound when examined, accepted, and enrolled into service. Although the Board concedes that the Veteran was exposed to hazardous noise during service, the preponderance of the evidence is against a finding of a nexus between that noise exposure and the hearing loss disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Veteran did not have a hearing loss disability at separation from service. The Veteran's medical records are silent as to complaints, treatment, or diagnoses of hearing loss until many years after service. In addition, four VA examiners explicitly opined that it was less likely than not that current right ear hearing loss was a result of or caused by noise exposure during service because delayed onset hearing loss is not consistent with hearing loss caused by acoustic trauma. The VA examiners reviewed the entire medical record and took into account the lay statements by the Veteran in coming to that opinion. However those statements did not provide objective evidence that the Veteran's current right ear hearing loss disability was related to noise exposure in service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board acknowledges the statements of the Veteran regarding the onset of the hearing loss disability, and finds the Veteran competent to report symptoms, such as difficulty hearing, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the VA examination opinions to be the most probative and persuasive evidence of record. The VA examiners have medical training, and reviewed all the available medical records, including the Veteran's statements about the exposure to hazardous noise during service. The Veteran has not submitted any contrary objective evidence suggesting that the hearing loss disability was caused or aggravated by an in-service incident. Although private medical records relate the hearing loss to service, the Board finds the opinions provided were speculative. Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of may also implies may or may not and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4 (1993) (doctor's statement framed in terms such as could have been is not probative); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (may or may not language by physician is too speculative). The private records did not provide adequate rationales explaining why the examiners came to their opinions. Further, neither private medical record addressed hearing loss that pre-existed service, or the normal audiometric findings after noise exposure in service. Therefore, those private opinions which address only causation, do not support a finding of aggravation of any preexisting right ear hearing loss. The Board finds that the preponderance of the evidence is against a finding that right ear hearing loss was incurred in service or is related to noise exposure in service. The Board further finds that if right ear hearing loss preexisted service, the evidence does not show any increase in severity during service. Therefore, the evidence clearly and unmistakable shows that any preexisting right ear hearing loss was not aggravated during service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection right ear hearing loss disability, and clear and unmistakable evidence is against a finding that right ear hearing loss was aggravated during service. Therefore, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right ear hearing loss disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs