Citation Nr: 1805401	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  11-32 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected tinnitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

I. Cannaday, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from September 2006 to April 2010.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

A hearing was held before the undersigned Veterans Law Judge in October 2016.  A transcript of the hearing is of record.

The Board remanded the case for further development in February 2017.  The case has since been returned to the Board for appellate review.  The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's February 2017 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance).


FINDING OF FACT

The Veteran does not currently have a bilateral hearing loss disability that was manifest during his active service, nor related to active service, and was not manifest within one year from the date of his separation from the military.


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 may not be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5102, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has considered the Veteran's claim and decided entitlement based on the evidence or record.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Law and Analysis

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131(2012).  That an injury or disease occurred in service is not enough; there must be a chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

For the showing of a 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 an organic disease of the nervous system, sensorineural hearing loss is considered a chronic disease for VA compensation purposes.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. § 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)

For veterans who 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 (sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).

The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  Impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and 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 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for the Veteran's claimed bilateral hearing loss.

As discussed below, the Veteran's March 2010 in service VA examination does show some degree of hearing loss pursuant to Hensley; however, the Veteran's service treatment records do not reveal any complaints, diagnosis, or treatment for a hearing loss disability as defined by 38 C.F.R. § 3.385.  

The Veteran's hearing was tested in September 2006 during his entrance to service, audiometric findings were as follows:


500
1000
2000
3000
4000
Right
5
5
5
10
10
Left
5
0
0
5
10
 
The Veteran's hearing was again tested in June 2006, audiometric findings were as follows:


500
1000
2000
3000
4000
Right
0
0
0
0
10
Left
5
0
0
0
10
 
The Veteran's hearing was again tested at his February 2010 separation examination, audiometric findings were as follows:


500
1000
2000
3000
4000
Right
10
0
10
10
10
Left
15
5
5
0
10

Based on this evidence, the Board finds that a sensorineural hearing loss disability, nor manifestations sufficient to identify the disease entity, were shown during service.  The pertinent regulations require that manifestations are "noted" in the service records and that is not case in this instance.  Therefore, while sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of a sensorineural hearing loss disability was shown in the service records.  As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and sensorineural hearing loss may not be presumed to have been incurred in service.  38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309.

The Board acknowledges the Veteran's statement in his March 2010 VA examination that his hearing loss originated in service.  The Veteran is competent to report his experience and symptoms in service and thereafter.  While laypersons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder.  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).  A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease.  See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b).  The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  Buchanan, 451 F.3d at 1336.  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007).

In this case, the Board finds that the Veteran is competent to state that he has had hearing loss since his military service.  However, his statements are inconsistent with the contemporaneous record.  As previously discussed, there is no evidence of any complaints, treatment, or diagnosis of a right ear hearing loss disability in service.  Further, while the Veteran noted other disabilities, he denied having hearing loss on his January 2010 Report of Medical History.  Moreover, as noted above, objective testing in service did not reveal hearing loss as defined under 38 C.F.R. § 3.385.  

Additionally, the Veteran was provided a March 2010 VA examination; audiometric findings were as follows:


500
1000
2000
3000
4000
Right
20
15
25
30
35
Left
25
15
20
30
35

Speech audiometry using the Maryland CNC test revealed speech recognition ability of 100 percent in the right ear, and 100 percent in the left ear.  The examiner found that the Veteran did not have hearing loss that met VA standards.  

As such, there exists affirmative evidence showing that he did not have hearing loss in service.  The Board finds that this affirmative evidence, including objective testing, outweighs the Veteran's assertions of an in-service onset.  Thus, the Board assigns greater probative value to the contemporaneous documentary evidence than the lay statements of the Veteran.

For these reasons, the Board finds that the reported onset of a hearing loss disability is outweighed by the evidence of record discussed above.  Therefore, the Board concludes that the Veteran's claimed hearing loss did not manifest in service or within a year of service.

Nevertheless, as noted above, the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). 

The Veteran contends that he experienced noise exposure in service, which caused his hearing loss.  Specifically, the Veteran stated that he was exposed to noise from aircraft and from chipping hammers in the painting of ships.  See March 2010 VA examination.  In the alternative, the Veteran, through his representative, contends that his hearing loss is secondary to his service-connected tinnitus.  See Bd. Hrg. Tr. at 18.  The Board finds the Veteran's statement is credible and competent with regard to his history of noise exposure during service.  However, the post-service medical records do not show that Veteran has hearing loss by VA standards.  See 38 C.F.R. § 3.385.  

The Board notes that in November 2010, the Veteran provided a private audiogram meeting VA standards for a hearing loss disability.  However, while the private audiogram had a speech discrimination score, there is no indication that the Maryland CNC speech discrimination test was used.  38 C.F.R. § 4.85 ("An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.").  Additionally, the Board notes that a September 2010 VA treatment record indicated that the Veteran's hearing could not be accurately assessed because he had suspected fungal growth in his right ear.  The audiologist recommended that the Veteran return for testing after his ears became healthy.  The November 2010 private audiologist did not discuss the Veteran's fungal growth.

Moreover, subsequent to the November 2010 examination, the Veteran's February 2011 VA treatment record indicated that that the previous hearing evaluations have shown disparate findings.  In this regard, the Veteran's hearing per puretone sensitivity had varied from marginally normal bilaterally to a mildly sloping mild to moderately severe bilateral hearing loss.  The February 2011 audiologist noted that the Veteran was coping with a recent bout of fungal externa otitis and that the Veteran was using a topical medication.  Thus, it appears as if the audiogram testing that occurred around this period of time may not have accurately portrayed the Veteran's hearing.

The Veteran was afforded another VA examination in July 2017.  At the July 2017 VA examination, the puretone thresholds, in decibels, were as follows:


500
1000
2000
3000
4000
Right
30
35
55
60
60
Left
35
35
40
45
50
 
Speech audiometry using the Maryland CNC test revealed speech recognition ability of 95 percent in the right ear, and 96 percent in the left ear.  The examiner diagnosed the Veteran with mixed hearing loss.  

However, the examiner stated that the Veteran's pattern of hearing loss was not consistent with the noise exposure experienced during military service, nor was it consistent with the interview conducted with the Veteran.  Pure tone average was not within 6 dB of Speech Recognition Threshold, suggesting that pure tone thresholds were not reliable.  The examiner also noted a November 2010 audiological exam in the records that indicated that the veteran had inconsistent responses.  Further, when opining as to whether the Veteran's claimed hearing loss was proximately due to or the result of the Veteran's service-connected tinnitus, the examiner noted that the Veteran had "a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not  . . . a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The opposite is not generally true."  He further stated that the Veteran was aggravated by questions regarding his claim and despite repetitions of instructions, the Veteran did not provide reliable hearing test responses. 

The Board notes that the "duty to assist is not always a one-way street," and that the Veteran has an obligation to actively participate, to include attending scheduled VA examinations.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  He is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so would subject him to the risk of an adverse adjudication based on an incomplete and underdeveloped record.  Id.; Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005).

Given the above, the evidence does not show that the Veteran had a hearing loss disability for VA purposes.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the Veteran currently has the disability for which benefits are being claimed.  Since the evidence does not show that the Veteran had a hearing loss disability, the Board finds that the Veteran is not entitled to service connection.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency).

The Board is grateful for the Veteran's honorable service.  However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise.  See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits"); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); 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).  Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted.

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ORDER

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs