Citation Nr: 18157576 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-63 296 DATE: December 13, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial disability rating higher than 10 percent for other specified trauma and stressor-related disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has bilateral hearing loss due to a disease or injury in service, to include specific in-service event, injury, or disease including acoustic trauma. 2. For all periods relevant to this appeal, the Veteran's trauma and stress-related disorder has resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a) (2017). 2. The criteria for an initial disability rating higher than 10 percent for other specified trauma and stressor-related disorder are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from March 1965 through March 1969, including service in Vietnam. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that was incurred during his active duty service as a result of acoustic trauma. He does not make any express assertion that his reported hearing loss began during service or that it has been chronic since service. In sum, his claims submissions raise only the general assertion that his hearing loss resulted at some point from his in-service acoustic trauma. Generally, service connection will be granted if the evidence shows that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Service connection requires an evidentiary showing of three essential elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a) (2017). Hearing loss is not deemed disabling for VA purposes unless the claimed hearing loss is of a particular level of severity. In that regard, hearing impairment will be considered a disability only when the pure tone threshold for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or, speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). Here, audiometric tests conducted during an April 2014 audiological examination revealed that the Veteran does have present hearing loss that is disabling as defined under 38 C.F.R. § 3.385. The question for the Board is whether the Veteran's hearing loss began during active duty service, or, is related etiologically to an in-service injury, event, or disease such as acoustic trauma. The service department records show that the Veteran did likely experience acoustic trauma during service from jet engine noise and other noise from the flight line near where he performed his in-service duties. Still, the preponderance of the evidence weighs against finding that the Veteran’s hearing loss began during service or is otherwise related to an in-service injury, event, or disease, including acoustic trauma. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d) (2017). The service treatment records show that audiometric tests conducted during the Veteran's March 1965 enlistment examination and September 1968 separation examination showed hearing sensitivity that was within normal limits for both ears. Also, the reported audiometric data from both examinations does not indicate significant audiometric shifting. For purposes of comparison, the Board notes that audiometric pure tones during the Veteran's enlistment examination were as follow (NOTE: prior to November 1, 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the older ASA standards (which are expressed outside parentheses on the left) have been converted to currently used ISO-ANSI standards (which are expressed by the figures in parentheses on the right)): HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -5 (5) -10 (0) 0 (5) LEFT 5 (20) -5 (5) -5 (5) 10 (20) 5 (10) Audiometric tests conducted during the separation examination revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -5 -5 LEFT -10 -10 -5 0 5 In conjunction with the above data, Reports of Medical History completed by the Veteran during his enlistment and separation examinations show that the Veteran expressly denied having any history of hearing loss. Indeed, as noted at the outset, the Veteran does not assert that his hearing loss began at any time during service. The post-service treatment records contain no evidence pertaining to any private or VA treatment for the Veteran's hearing loss. Indeed, the only post-service medical evidence in the file is an April 2014 audiological examination report that does show audiometric findings that meet the criteria for a disability under 38 C.F.R. § 3.385. Based on that date, the examiner diagnosed bilateral sensorineural hearing loss. The examiner opined, however, that the hearing loss was not likely related to the Veteran's active duty service. As rationale, the examiner observed that repeated audiometric studies conducted during service were normal. Moreover, a comparison of the audiometric findings from both examinations do not indicate any significant shift in the Veteran's in-service pure tone thresholds. Consistent also with the examiner's opinion and rationale, the Board observes that the evidence in the record shows that the Veteran's hearing loss was not diagnosed until the April 2014 examination, decades after the Veteran's separation from service. The 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). The examiner's negative opinion is rebutted in the record only by the Veteran's general lay assertion that his current hearing loss is related in some way to his in-service acoustic trauma. That assertion, however, are not entitled to probative weight. The question concerning the etiology of the Veteran's hearing loss is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic audiometric testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran is not entitled to service connection for bilateral hearing loss. To that extent, this appeal is denied. 2. Entitlement to an initial disability rating higher than 10 percent for other specified trauma and stressor-related disorder Service connection for other specified trauma and stressor-related disorder was granted for the Veteran, effective from February 19, 2013. The Veteran argues on appeal that he is entitled to a higher initial disability rating. The Veteran's disability has been rated in accordance with the criteria under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. Regardless of which of the criteria that VA selects for rating mental health disorders under DCs 9201 through 9440, disabilities are to be rated pursuant to the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 10 percent disability rating is assigned for disabilities that are manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent disability rating is assigned where the evidence shows that the disability is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (i.e., forgetting names, directions, and recent events). A 50 percent disability rating is assigned for disabilities that are manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is appropriate for disabilities that are manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or the inability to establish and maintain effective relationships. A 100 percent disability rating is contemplated for disabilities that are productive of total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; or memory loss for the names of close relatives, own occupation, or own name. Records pertinent to the appeal period under consideration show that the Veteran has not received any active or ongoing treatment for his service-connected mental health disorder. During an April 2014 examination, he reported that he maintained good relationships with his spouse, son, and siblings. He reported also that he had a number of close friendships and that he normally got along well with others. Occupationally, he reported that he worked as a corrections officer until his retirement eight years ago. He stated that since that time he had worked as a part time security officer. He stated that he could perform his job requirements well and that he had positive work relationships with his peers. During the mental status examination, the Veteran reported chronic sleep impairment. No other symptoms were reported by the Veteran or observed by the examiner. Based on the reported and demonstrated symptoms and impairment, the examiner concluded that the Veteran's disorder was causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner's findings are consistent with the Veteran's own described level of function and the objective findings from the examination. Based on the evidence, the criteria for a 10 percent disability rating, and no higher, are met under the General Formula for the Veteran's disability. (Continued on the next page)   The Veteran is not entitled to an initial disability rating higher than 10 percent for trauma and stressor-related disorder. To that extent also, this appeal is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Lee, Counsel