Citation Nr: 18153873 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-16 922 DATE: November 28, 2018 ORDER 1. Entitlement to service connection for bilateral hearing loss disability is denied. REMANDED 2. Entitlement to non-service-connected disability pension is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss disability did not have its onset in service; it was not manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from June 1973 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified at a Board Travel Board hearing held at the RO before the undersigned Veterans Law Judge in November 2017. A transcript of this hearing is associated with the claims file. 1. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that he has bilateral hearing loss that his related to noise exposure during his military service. Specifically, the Veteran reports that he lost considerable hearing in his right ear during boot camp as the ear plugs they provided him for use on the rifle range would not stay in his right ear, as none of the sizes they gave him fit his ear and, therefore, it kept falling out. He was told to just shoot without them. He spent two weeks of shooting on the firing range and working the pits without hearing protection and has struggled with his hearing ever since. See August 2013 Notice of Disagreement. He has also reported additional noise exposure while performing in his Military Occupational Specialty of Aviation Supply Specialist in that he worked around F-14 jets on or near the flight line. He reports that he had an office in the hanger but about half his time was spent outside of it out and around the jets where they were doing touch and goes all day and night. Also, he reported that his office was right next to the silo, where they tested the jet engines they were working on and the whole hanger would shake and they could hardly hear anything. See February 2016 VA Form 21-4138. He has reported both that he was provided hearing protection during such service and not provided with hearing protection. See his report in the February 2016 VA Form 21-4138 versus his report on VA Audiology consultation in January 2012. The Veteran has also stated that he was not given a hearing test when discharged from the service and, therefore, he contends that VA cannot say his hearing loss is not service related. See e.g., May 2015 VA Form 9. With respect to hearing loss, VA has specifically defined what is meant by a hearing loss “disability” for the purposes of service connection: “[I]mpaired 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. The 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current disability of bilateral hearing loss disability that meets the criteria set forth in 38 C.F.R. § 3.385, and that the Veteran was exposed to noise exposure during service; however, it finds that the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral hearing loss disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The reasons for this determination follow. The record contains conflicting medical opinions regarding whether the Veteran’s bilateral hearing loss disability is at least as likely as not related to an in-service injury, event, or disease, specifically the Veteran’s in-service noise exposure. The May 2013 VA examiner wrote that the hearing tests in 1972, 1974, and 1977 all showed bilateral normal hearing. He opined that the Veteran’s bilateral hearing loss disability was not related to service. The rationale was based on the Institute of Medicine Report (Noise and Military Service, Sept. 2005), which concluded that, based on current knowledge, noise-induced hearing loss occurs immediately (i.e., there is no scientific support for delayed onset noise-induced hearing loss weeks, months or years after the exposure event), and given there was no significant shift in hearing levels during military service, the Veteran’s hearing loss was not related to in-service noise exposure. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA Audiology records show that the Veteran’s treating audiologist has opined that the Veteran’s bilateral hearing loss disability is related to service. The rationale was that given the Veteran’s history of in-service noise exposure, this was the most likely cause/explanation for the asymmetric of his bilateral hearing loss disability, i.e., right greater than left. See January 2012 VA Audiology Consult note. However, this opinion is less probative than the VA examiner’s opinion. The evidence does not show that the VA audiologist reviewed pertinent medical evidence in the claims file, specifically, the in-service audiometric test results, which, the May 2013 VA examiner stated showed bilateral normal hearing throughout the Veteran’s service. Consequently, the Board gives more probative weight to the May 2013 VA examiner’s opinion, which opinion was based on a review of the service treatment records and other evidence in the file. The Board has also considered whether service connection is warranted under any presumption. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board concludes that, while the Veteran has bilateral sensorineural hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), (i.e., an organic disease of the nervous system), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. VA treatment records show the Veteran was not diagnosed with bilateral hearing loss disability until January 2012, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of hearing loss in service or during the presumptive one-year period, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a bilateral hearing loss disability. This issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral hearing loss disability. REASONS FOR REMAND 2. Entitlement to non-service-connected disability pension is remanded. In September 2011, the Veteran applied for non-service-connected disability pension benefits in addition to service-connected compensation due to his back problems, hearing loss and vision and dental problems. The RO denied his application on the basis that he was not found to be permanently and totally disabled by his disabilities. In his Notice of Disagreement, the Veteran stated that, while working as a roofer in 1979, he fell 30 feet off a roof and severely broke his left elbow and left hip, as well as badly spraining his back. He reported that arthritis had set into his left elbow and back and that he cannot lift or carrying anything because doing so causes him severe pain in his left arm and back. He also said cannot stand or sit very long without being in agony. He also claimed that he cannot go back to the work he was last doing as a utility locator, or any other work he knows, essentially because he cannot handle the physical aspects of those jobs, such as heavy lifting, carrying heavy objects long distances and bending over excessively. He stated that he worked through the pain all these years without complaint but he cannot do it any longer. See August 2013 Notice of Disagreement. At the November 2017 hearing, the Veteran testified that it is mostly his back that he believes is problematic to him working. He reported that he has pain in his back up through his neck, but that it is mostly in the lumbar spine, and that he cannot sit or stand for any period of time. In reviewing his employment history, he reported he only worked a couple years as a roofer after service before he fell and injured himself and then he went to barber college when he was well enough. He worked for 10 years as a barber until he quit because of back pain caused by standing too long in one place. Thereafter, he worked for about 15 years as an underground utility locator. He reported his reasons for leaving that employment were two-fold – because of pain from lifting manhole covers and because the work dried up when the housing bubble burst. He further stated that, in the past three years, he has been driving a cab for work. Initially he drove full-time working five to six days per week, but the shifts are 12 hours long and it became too painful for him to sit for that long so, therefore, he decreased his hours to part-time. He reported he had not driven at all for the month and a half prior to the hearing, although he still had his license and could drive when and if he needed to. He also testified he began collecting his Social Security retirement benefits when he turned 62 the year before and that he believes he applied for disability benefits but was denied. VA treatment records from March 2015 to November 2017 were associated with the Veteran’s claims file after the Board hearing which corroborate the Veteran’s report that he was a cab driver and show a more detailed history of when he drove full-time versus part-time than the Veteran provided at the Board hearing. The treatment records that were available when the RO adjudicated the Veteran’s claim were silent as to his employment status or history. These new VA treatment records also show the Veteran’s complaints of worsening back pain and treatment, as well as his reports of his back pain affecting his ability to work full-time as he testified at the Board hearing. The treatment records, however, do not provide sufficient objective evidence to rate the Veteran’s back disability under VA’s rating schedule. Moreover, the Veteran testified he had not worked for a month and a half at the time of the hearing. The Board notes that the Veteran has not been provided with a pension examination relating to his claim. Therefore, given the state of the evidence of record at this time, the Board finds that remand is warranted to provide him with such an examination for the purposes of determining whether he is permanently and totally disabled for VA pension purposes. Finally, as the Board is remanding for an examination, further documentary development should be undertaken as well as directed below. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2017 to the Present. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Thereafter, schedule the Veteran for a pension examination by an appropriate clinician to identify and determine the severity of his current disabilities. The examiner should provide a full description of each disability identified and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any symptoms, including flare-ups and the degree of functional loss during flare-ups. To the extent possible, the examiner should discuss the effect that each disability identified has on the Veteran’s occupational functioning. 4. In readjudicating the Veteran’s claim for non-service-connected disability pension, all evidence received since the March 2015 Statement of the Case should be considered. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.M. Kreitlow