Citation Nr: 18157147 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 16-56 623 DATE: December 12, 2018 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT Hearing loss disability is not shown in service or within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that his bilateral hearing loss is due to in-service noise exposure. In addition, the Veteran argues that the VA examination report is inadequate; specifically, the Veteran challenges the medical opinion of record, noting that it should not be entitled to any probative weight because it only contains data and conclusions. The Board recognizes that, in October 2015, the Veteran challenged the adequacy of the September 2015 VA hearing loss examination, asserting, among other things, that the examiner’s report only contained data and conclusions, failed to articulate sound reasoning, and did not discuss lay evidence or the presumptive rules required by regulation. See October 2015 Notice of Disagreement. A VA examination is required when necessary to decide a claim, and if VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The United States Court of Appeals for the Federal Circuit has held that VA examinations are presumed to be adequate absent a specific challenge as to their adequacy. See Sickels v. Shinseki, 643 F.3d, 1362, 1366 (Fed. Cir. 2011). Moreover, there is a presumption of regularity under which it is assumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The presumption of regularity in the administrative process may be rebutted by “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994). In this instance, the September 2015 examiner, who is identified as a VA-contracted audiologist, indicated that she reviewed the Veteran’s VA claim file, which contains multiple lay and medical statements regarding the severity of the Veteran’s hearing loss, conducted an in-person examination and recorded extensive notes describing the Veteran’s remarks during the examination. For instance, it was annotated that the Veteran (1) did not hear a lot of familial conversations, (2) could not hear his preacher on Sunday, (3) could not hear a lot of his wife’s comments, (4) uses closed caption on the television a majority of the time, and (5) has to ask people to repeat themselves multiple times. Moreover, the examiner’s report is responsive to VA criteria for examination of hearing loss for disability rating purposes. The examiner conducted objective tests, such as the puretone thresholds and the Maryland CNC. Accordingly, the Board finds the Veteran’s specific allegations insufficient to overcome the presumption that the VA examination was performed correctly, and finds that the examination is adequate. See Sickels v. Shinseki, 643 F.3d, 1362, 1366 (Fed. Cir. 2011). Thus, VA’s duty to assist with respect to obtaining an adequate VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Turning to the service connection issue, the Veteran contends that his current hearing loss disability is due to in-service noise exposure. In support of his argument, the Veteran submitted various research articles discussing acoustic trauma, noise exposure concerning military personnel, and noise-induced hearing loss. The question for the Board is whether the Veteran has a chronic disease, hearing loss, that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. Also, the question for the Board is whether his current hearing loss disability is due to an in-service injury, event or disease. The Board concludes that, while the Veteran has a current hearing loss disability as defined by 38 C.F.R. § 3.385, a hearing loss disability for VA purposes was not manifested in service or within the initial post separation year; that continuity of symptomatology is not established; and that his currently shown hearing loss disability was not caused by an in-service injury, event or disease. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic diseases, such as sensorineural hearing loss, identified as such in 38 C.F.R. § 3.309(a), the disability is considered to have been incurred in or aggravated in service if manifested to a compensable degree during the period of service or within one year following service. 38 U.S.C. § 1110; 38 C.F.R. § 3.307(a)(3). For chronic diseases not manifested to a compensable degree during service or within one year following service, service connection can still be established through a demonstration of continuity of symptomatology. Barr, 21 Vet. App. at 307. For 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 Board notes that service department audiometric tests prior to October 31, 1967 were in ASA (American Standard Association) units, and require conversion to ISO (International Organization for Standardization) units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. Conversion to ISO units is accomplished by adding 15 dB to the ASA units at 500 Hertz, 10 dB to the ASA units at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 dB to the ASA units at 4000 Hz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. As relevant, the Veteran’s entrance hearing examination seems to report 35 decibels on the 4000 Hertz frequency for the left ear. However, no hearing loss was specifically noted as a defect at entrance into service, the Veteran notated on the report of medical history form that he did not suffer from hearing loss, and the VA audiologist reviewed the findings and said that hearing was normal at entrance. Thus, the Board finds that, because the degree of hearing loss noted on the Veteran’s entrance medical examination did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, he is entitled to the presumption of soundness under 38 C.F.R. § 1111. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016) (abnormal hearing which does not meet the thresholds of a hearing loss “disability” and cannot be deemed a “defect” which is noted on the entrance examination). In sum, service treatment records (STRs) reflect that the Veteran entered the Air Force in 1966 and that hearing was within normal limits. After converting the entrance hearing examination findings to ISO units, the audiometric examination does not reflect the presence of a hearing loss disability. The Veteran’s separation hearing examination, conducted under the ISO standard, reflects that he had normal hearing at separation. Indeed, the Veteran denied hearing loss in his February 1970 report of medical history. Additionally, the record does not include medical evidence showing a hearing loss disability in the one-year after his release from active service. Hence, a hearing loss disability is not shown in service or within the applicable presumptive period and there has been no continuity of symptoms (i.e., complaints of hearing loss in and since service). Moreover, a hearing loss disability for VA purposes is first documented on VA audiological examination dated in September 2015, decades after his separation from service in 1970 and decades after applicable presumptive period. The Board has carefully reviewed the Veteran’s STRs and acknowledges that these records show that the Veteran worked in a closed office environment around loud dot-matrix style equipment, manual typewriters, and telephones. See July 2015 Statement in Support of Claim. However, on his February 1970 report of medical history, the Veteran denied any hearing loss, even though he stated that he started experiencing hearing loss symptoms while in active duty. Id. Moreover, the military separation audiometric examination shows the Veteran’s hearing within normal limits. A September 2015 VA audiological examination reflects findings for a VA hearing loss disability. As stated above, the Veteran reported that he first noticed hearing loss symptoms while in service. In this regard, the Veteran stated that he “did not make a claim prior to discharge because we were told that if we intended to file a claim we could expect to stay an extra six months.” See July 2015 Statement in Support of Claim. He further stated that he “did not purse a claim at that time but my hearing loss has deteriorated ever since that that time . . . .” Id. The September 2015 examiner opined that the current findings for hearing loss were not caused by or a result of an event in military service. The examiner observed that the Veteran’s thresholds at time of entrance and separation of active duty were within normal limits, thus, concluding that the Veteran’s “current bilateral hearing loss is likely than not related to military noise exposure.” See September 2015 Hearing Loss and Tinnitus DBQ. The examiner cited the American College of Occupational Medicine Noise and Hearing Conservation Committee, quoting that “a noise induced hearing loss will not progress once it is stopped.” Id. Furthermore, in reaching this conclusion, the examiner took into consideration the Veteran’s military occupational specialty as a personnel specialist, his lay statements concerning his work environment, in which, the Veteran stated that he worked in enclosed office environment near phones and typewriters, and was part of a hazardous response team on the flight line. The record confirms that the Veteran worked in an office setting, however, in performing his duties he had no significant exposure to noise. Indeed, the record shows that the Veteran duties included, among other things, monitoring port calls, controlling tour extensions and curtailments, and assisting in forecasting personnel assignment. While the Veteran is competent to report his symptoms of hearing loss and its onset, the Board finds that he is not competent to formulate an opinion as to its etiology of his hearing loss given that he had noise exposure outside of military service, and he lacks the requisite medical expertise to evaluate the audiological evidence in the context of his noise exposure history. Post service noise exposure, as reported by the Veteran, includes fire arms, power tools, and motorcycles/recreational vehicles. Nevertheless, the etiology of delayed onset hearing loss is not susceptible to lay observation and is a complex medical matter that requires an understanding of the anatomy of the ear and hearing mechanisms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board assigns greater probative value to the normal findings on service separation in February 1970 coupled with the decades intervening service and the first documented complaints and findings for hearing loss along with the negative VA medical opinion. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The VA medical opinion is more probative than the Veteran’s uncorroborated medical opinion as it was based on review of the record including the medical history as provided by the Veteran. Also, the conclusion is supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (stating that most of the probative value of a medical opinion comes from its reasoning); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). In conclusion, after considering all the evidence of record, to include the evidence submitted by the Veteran, the Board finds that the preponderance of the evidence is against finding that service connection for bilateral hearing loss is warranted as the competent, credible and probative evidence is against finding that the Veteran’s current hearing disability is related to his military service. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection for bilateral hearing loss is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Associate Counsel