Citation Nr: 1802388	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-09 783	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Minot, Associate Counsel


INTRODUCTION

The Veteran had active duty for training (ACDUTRA) from April 23, 1984 to July 27, 1984.  In May 2013, he was awarded service connection for tinnitus arising from his ACDUTRA service; as such, he is considered a Veteran for claims arising from this period.  See Hill v. McDonald, 28 Vet. App. 243, 253 (2016) (holding that because the appellant was service connected for one disability incurred during the relevant period of ACDUTRA, he established veteran status for the purposes of additional claims for service connection arising from the same period of ACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which declined to reopen the previously-denied claim for bilateral hearing loss.  In September 2015, the Board reopened the claim and remanded it for evidentiary development.


FINDING OF FACT

The Veteran's bilateral hearing loss is not related to his active service, and an organic disease of the nervous system did not manifest to a compensable degree within one year of separation from active service.


CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he has a current bilateral hearing loss disability that was incurred as a result of exposure to noise from tanks, grenades, and firearms during his period of ACDUTRA.  Specifically, he contends that he experienced sudden-onset hearing loss following exposure to such noise and that his "ear drum went out and I couldn't hear for a couple of days" and "couldn't hear nothing."  See VA Examination Report (January 2016).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).

Service connection may also be granted for any disease 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 after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

For the showing of 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."  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); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).  

The threshold for normal hearing is from zero to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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.  38 C.F.R. § 3.385.  Hearing loss does not constitute a disability if it does not meet the threshold requirements listed in 38 C.F.R. § 3.385.  Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007).

The Veteran's service treatment records reflect that in February 1984, prior to his period of ACDUTRA, audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
20
20
10
LEFT
15
15
25
30
15

On April 24, 1984, audiometric testing revealed significant threshold shifts at all frequencies with pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
n/a
50
55
60
60
LEFT
n/a
55
50
55
55

These results were accompanied by a note to "wash out ear" and re-test at a later date.  Three days later, on April 27, 1984, audiometric testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
n/a
10
20
20
20
LEFT
n/a
15
25
25
20

The Veteran was not provided audiometric testing at separation from ACDUTRA.  In October 1985, he received emergency care for complaints of headaches.  There was no mention of hearing loss.  The Veteran was diagnosed with possible sinusitis.

In May 2012, the Veteran submitted records from a private care provider, Dr. Atwell, including an audiogram (also dated in May 2012) which appears to indicate hearing loss that did not meet the threshold for disability pursuant to 38 C.F.R. § 3.385.  The Veteran also submitted a copy of an audiogram and Maryland CNC Test results from Better Sound Hearing Aid Service (dated in April 2012), which appear to show hearing loss in both ears that would qualify as a current disability.  See id.  No discussion as to the etiology of the Veteran's hearing loss was included in these records, nor is there any indication that the examiners reviewed the Veteran's claims file.

On VA examination in March 2013, the Veteran reported that he acquired hearing loss and tinnitus as a result of exposure to weapons fire while in the military.  Audiogram testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
70
55
75
75
75
LEFT
65
55
65
65
70

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 94 percent in the left ear.  However, the examiner opined that both the pure tone and speech discrimination test results were invalid for rating purposes, as there were "significant inconsistencies" in the results.  Notably, in its September 2015 remand, the Board determined that the VA examiner's opinion was inadequate, given the examiner's recommendation for further evaluation and inaccurate references to prior audiograms.

On VA examination in January 2016, audiogram testing revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
20
20
LEFT
20
20
25
25
25

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 80 percent in the left ear.  A diagnosis of normal hearing in the right ear and sensorineural hearing loss in the left ear was noted.

As an initial matter, the Board finds that, when resolving reasonable doubt in the Veteran's favor, the evidence reflects that he has a current bilateral hearing loss disability pursuant to VA regulations.  See 38 C.F.R. § 3.385.  Although there is some inconsistency in the record as to the severity of the Veteran's hearing loss, most notably as represented by the contrast between the March 2013 and January 2016 VA audiograms, the findings of the majority of the tests performed during the appeal period reflects a level of hearing loss that meets the criteria of 38 C.F.R. § 3.385.

Nevertheless, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to in-service noise exposure.  In this regard, the Board reiterates that the Veteran's specific contentions are that he had sudden-onset hearing loss in service due to exposure to noise from tanks, grenades, and weapons fire.  His service treatment records corroborate this contention to the extent that threshold shifts were noted on April 24, 1984.  However, the January 2016 VA examiner's opinion observed that these shifts were transient, not consistent with noise-induced shifts, and that they resolved upon re-testing.  The examiner concluded: "Based upon a review of this evidence, it is my clinical opinion that [the Veteran's] hearing loss is less likely as not the result of military noise exposure."

On review, the Board finds the January 2016 VA examiner's opinion to be persuasive regarding the Veteran's in-service hearing loss, as the opinion accurately characterized his service treatment records (as discussed above).  Notably, while significant threshold shifts were noted on April 24, 1984, subsequent testing revealed that the Veteran's hearing loss had returned to levels similar to those seen at entrance.  (The Board notes that the examiner apparently mistakenly referred to the April 24, 1984 audiogram as having occurred in May 1987 when referring to "pan-frequency threshold shifts" occurring in service.  Given the context of the examiner's rationale and the fact that the record does not include audiogram results from May 1987, the Board finds it more likely than not that the examiner was in fact referring to the April 24, 1984 audiogram.)  Having reviewed the relevant service treatment records, the Board finds the January 2016 VA examiner's rationale and explanation for the April 24, 1984 threshold shifts to be probative.

Having addressed the April 1984 audiogram results, there is no additional probative evidence of record demonstrating a link between the Veteran's current hearing loss disability and his reports of in-service hearing loss.  The Board recognizes that the absence of evidence of an in-service hearing loss disability is not fatal to the Veteran's service connection claim.  See Hensley, 5 Vet. App. at 158; Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  However, as discussed above, the documented in-service hearing loss was determined by a medical expert to be transient and not consistent with noise-induced shifts.  The VA examiner's findings are more probative than the Veteran's lay statements.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In sum, the weight of the evidence of record is against the Veteran's claim that in-service noise exposure to tanks, grenades, and weapons fire is causally linked to his current bilateral hearing loss disability, nor does the weight of the evidence suggest that an organic disease of the nervous system associated with hearing loss manifested in service or within one year of separation.  See 38 C.F.R. § 3.303(d); Walker, 708 F.3d 1331.  Accordingly, service connection must be denied.



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ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.





____________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs