Citation Nr: 1802821	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  14-22 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

G. Morales, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from September 1961 to September 1963.  
This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

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

The Veteran's current bilateral hearing loss did not manifest during service, or to a compensable degree within one year after active duty, there was no continuity of symptomatology, and the current disability is not otherwise the result of a disease or injury in service. 


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but it is not required to provide assistance to a claimant if there is not a reasonable possibility that assistance would aid in substantiating the claim. VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). 

The Veteran and his representative have not alleged any deficiencies in VA's duties to notify and assist. It will not be discussed further. As such, the Board will proceed with consideration of the Veteran's appeal. 
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology since service, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).  Sensorineural hearing loss is considered organic diseases of the nervous system, and as such are enumerated chronic diseases. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. §§ 3.307, 3.309. 

The auditory threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies 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 Veteran is competent to report symptoms and experiences observable by his senses, including when he first perceived hearing difficulties. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 

The Veteran asserts that his hearing loss is related to acoustic trauma in service. He contends that he suffered from hearing loss while in the military, which continued and worsened once he exited service. See 6/17/2014, Form 9. 

The Veteran has a bilateral hearing loss disability for VA purposes. A March 2014 VA examination shows a diagnosis of sensorineural hearing loss for both ears and audiometric findings that meet the criteria for a VA disability for VA purposes. See 3/27/2014, VA Examination, at p. 1; 38 C.F.R. § 3.385. 

Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran also had hazardous noise exposure in service. There is conflicting evidence regarding the Veteran's military occupational specialty. His DD214 reports his occupation as a vehicle driver. See 12/10/2012, Certificate of Release, at p. 1. However, in his VA examination, it is reported that he was an artillery crewman. See 3/27/2014, VA Examination at p. 3; see also, VBMS 10/24/2013, LCM - CAPRI at p. 6 ("HISTORY OF NOISE EXPOSURE military noise exposure includes: Artillery: denied the use of hearing protection devices."). In either case, hazardous noise exposure would be a component of his daily duties.  Thus, in-service acoustic trauma is found here.

However, the Board finds the Veteran's hearing loss is not etiologically related to his military noise exposure. 

The Veteran states that his hearing loss began in service. However, his service treatment records show a normal whispered voice test on the October 1960 pre-induction and the September 1961 induction examinations. 11/04/2015, STR - Medical, at p. 24-25, 42. The records indicate normal audiometric findings on the August 1963 separation examination, and they are absent for any hearing related complaints. Id. at p. 6. 

Furthermore, the Veteran's medical records are absent for any reported hearing loss until August 2013. In his medical records, it is noted that he was referred to the Audiology Clinic for hearing loss evaluation on June 28, 2013, wherein it was reported that his hearing loss had its onset 20 years ago. See VBMS 10/24/2013, LCM - CAPRI at p. 5 ("SUBJECTIVE: Onset: 20 years ago"). There is no report or indication in his medical records that his hearing loss began within one year after separation from service. See generally, id.

In the March 2014 VA examination, the VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of his military service. See 3/27/2014, VA Examination, at p. 2. The examiner noted that the Veteran did not have hearing loss prior to service, that his induction physical exam used the Whispered Voice Test, and that his separation exam indicated normal hearing with "no thresholds greater than 10 dB HTL." Id. Additionally, the examiner noted that while in the Army, the Veteran used hearing protection some of the time, and after service, he worked in the coalmines, and again, only used hearing protection some of the time. Id. at p. 3. 

Thus, the objective evidence does not show that the Veteran's current bilateral hearing loss manifested during service or to a compensable degree within one year after his service discharge. He did not report hearing problems until 2013, and even then, the record indicates that his hearing loss did not begin until approximately 20 years prior - around 1983. He exited service in 1963, 20 years prior to his reported hearing loss manifestation. As such, service connection is not warranted on a presumptive basis as a chronic disease. See 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, the lack of showing of hearing loss on audiometric testing at discharge, in addition to no hearing problems during service or within one year of exiting service, counters the contention of continuity of symptomatology, precluding an award solely on that basis under Walker. 

Based on the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss began in service or is otherwise related to service. The preponderance of the evidence is against service connection, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 


ORDER

Entitlement to service connection for bilateral hearing loss is denied. 



____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs