Citation Nr: 18158493 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 09-19 048A DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran likely has a current bilateral hearing loss disability for VA purposes and his assertions of in-service noise exposure are credible and consistent with the circumstances of his military duties as a cannon crewman. 2. A bilateral hearing loss disability was not manifested during service, a threshold shift in hearing acuity occurred in service demonstrating improved hearing, sensorineural hearing loss was not shown during the first post-service year, and the most probative evidence indicates that any current bilateral hearing loss is not otherwise related to the Veteran’s active service, to include conceded military noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1976 to November 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2008 rating decision. In September 2017, the Board remanded the appeal for additional development. The Board notes the Veteran also appealed of the issues of entitlement to service connection for tinnitus and a left knee disorder, which were denied in a June 2016 rating decision. However, the agency of original jurisdiction (AOJ) is completing development of those issues. Therefore, those issues are not currently on appeal before the Board. Entitlement to service connection for bilateral hearing loss The Veteran contends he has a current bilateral hearing loss disability that began during military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In addition, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be: the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, may be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). 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 of 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 lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Initially, the Board finds the Veteran’s account of military noise exposure is credible because it appears to be consistent with his military occupational specialty (MOS) as a cannon crewman as documented on his DD Form 214. Thus, the issue in this case is whether the Veteran has a current hearing loss disability as defined by 38 C.F.R. § 3.385 and whether any such disability began in service, manifested to a compensable degree within one year of separation from service, or is otherwise etiologically related to his conceded military noise exposure. The results of active duty audiometric testing are recorded as follows: HERTZ Date Ear 500 1000 2000 3000 4000 August 1976 (Enlistment) RIGHT 30 15 20 N/A 40 LEFT 30 15 20 N/A 30 February 1978 RIGHT 25 25 25 N/A 25 LEFT 25 25 25 N/A 25 October 1978 (Separation) RIGHT 10 10 15 15 10 LEFT 10 10 5 15 15 In addition to audiometric testing, his ear drums and ears generally were reported as normal during each examination on clinical evaluation. In reports of medical history at enlistment in August 1976 and in February 1978, the Veteran denied currently or ever having hearing loss or ear trouble. He identified his usual occupation prior to service as “barber work.” In July 1978, he presented to sick call with complaints of a headache for the past day, stating he had walked into a telephone post and bumped his head. On examination, there were no signs of edema, no redness, and his head was not painful to touch. The assessment was headache and he was discharged to duty. In March 1990, the Veteran presented to a VA clinic requesting evaluation for the dual diagnosis treatment program (DDTP). He indicated he had worked for 15 years as a barber, but had been unemployed for the past two years; described his recent drug use; disclosed currently being on parole until 1994; and denied any major medical problems. He was referred to a DDTP counselor for evaluation and treatment. More than four years later in September 1994, he returned to VA with a broken finger and requested bus tickets. In March 2004, he re-established VA care after being released from prison. He described trauma from a blow to the head that caused problems with his thought process and other medical problems, but did not report problems with hearing loss. During another visit the same month, he elaborated that he had sustained a serious head injury in 1994 when he was struck in the head multiple times while being robbed outside a convenience store. In April 2005, the Veteran presented to sick call while incarcerated, requesting to see a psychologist. He stated he had sustained a head injury after being hit with bricks in the early 1990s while living on the streets. A June 2005 audiological record from Correctional Managed Care (CMC) indicates the Veteran was administered a hearing test as part of a hearing conservation program. The report details he had been working in the textile department, but now worked in the kitchen. The audiologist commented that the test was invalid because the Veteran had gone to sleep during the test and did not want to re-test. An August 2005 CMC psychology note reflects the Veteran’s report that he had worked as a barber for most his life. He related that in 1993 or 1994 he was living on the street and assaulted by other homeless people, adding he was hospitalized and in a coma for six days. In June 2006, the Veteran requested another hearing test, stating he was having difficulty hearing officers during count and was nearly receiving disciplinary action for not hearing instructions from security guards. A December 2006 CMC telemedicine otolaryngology note reflects his complaint of “terrible hearing for years.” The assessment was severe sensorineural hearing loss and the plan included discussing the need for follow-up with an audiologist. In April 2007, the Veteran was transported to an outside hospital for in-person audiometric testing. He reported a long-standing history of decreased hearing and multiple head traumas. The audiologist explained that although the Veteran volunteered responses to speech and pure tones were at moderately severe hearing loss levels, his word recognition abilities were at 64 percent in the right ear and 84 percent in the left ear at reduced sensation levels. The audiologist concluded the findings were consistent with elevated responses to pure tone stimuli. The audiologist advised the Veteran that a definitive statement regarding current hearing levels could not be made because the test reliability was only fair. The examiner recommended a repeat audiogram in six months. On audiological evaluation in September 2007, the Veteran reported continued hearing difficulty in both ears, right worse than left. He described a history of head trauma when “jumped” that required hospitalization and caused subsequent black outs, a family history of childhood hearing loss in a sister and age-related hearing loss in his father, and a history of noise exposure during military service without the use of hearing protection, admitting he was “told to wear hearing protection, but ‘didn’t pay attention.’” Again, the reliability of audiometric testing was reported as fair. The examiner elaborated that the Veteran’s history of head trauma may be related to his slow responses, difficulty with test tasks, and observed subjective processing difficulties, suggesting that he may have difficulty processing auditory information independent and/or related to hearing loss. Subsequently, in December 2007, he was cleared for a left ear hearing aid. A January 2008 CMC sick call note reflects his report that he was working in the textile plant again with a lot of noise and machinery. He was observed wearing a hearing aid on the left. The assessment was neurosensory and conductive hearing loss on left. In February 2008, the Veteran presented for a VA audiological examination. He reported a slow onset of hearing loss in both ears with particular difficulty hearing around crowds and mentioned a severe head injury when he ran into a tree during military service and blacked out. He described his belief that wearing his left ear hearing aid, which he obtained two months earlier, had made his right ear hearing acuity worse. The audiologist explained in detail that she was unable to obtain reliable test results or history from the Veteran, concluding he was a “very poor historian” because his “responses to questions were vague and did not become more detailed with repeated attempts to elicit more information.” The audiologist noted the Veteran “responded to pure tones bilaterally 500 [to] 2000 Hertz at the same level that acoustic reflexes were measured, a test inconsistency red flag.” Also, he responded to instructions at 60 decibel hearing loss bilaterally, but would not consistently repeat the Maryland CNC (controlled speech discrimination test) words at that level. Moreover, the audiologist indicated that distortion product otoacoustic emissions (DPOAEs) were measured and found to be present at 750 to 3000 Hertz bilaterally, which was markedly inconsistent with the degree of volunteered pure tone responses. The examiner elaborated that DPOAEs are not measurable in ears with hearing sensitivity greater than a mild hearing loss. Based on a review of the claims file and diagnostic and clinical testing, the audiologist opined that “any hearing loss or tinnitus present at this time is not related to a history of military noise exposure.” In support of the conclusion, the audiologist detailed that the Veteran’s hearing was documented as normal bilaterally at discharge from military service and the Veteran stated that he first noticed his hearing difficulties in the mid-1990s. In correspondence received in July 2015, the Veteran stated that while assigned to C Battery, 2d Battalion, 27th Field Artillery, which corresponds to his tour of duty in Germany from April 1978 to November 1978, he “started to recognize a change in the way that [his] sense of hearing was no longer sharp.” In correspondence received in July 2016, he asserted that “every value” from separation audiometry testing in October 1978 was “significantly worse” than the audiometry results from enlistment examination in August 1976. He observed, “In the 500 [Hertz] range, I went from 30 [decibels bilaterally] to 10, [at] 1000 [Hertz from] 15 to 10, [at] 2000 [from] 20 to 15 [right] and 5 [left], [and at] 4000 from 40 [right] and 30 [left] to 10 [right] and 15 [left].” He expressed his belief that these changes represented “significant hearing loss” at separation. In compliance with the Board’s Remand directives, the AOJ made several attempts to schedule the Veteran, who remains incarcerated, for an additional VA examination. Reports of contact with the nurse manager and a unit dispatcher at the correctional facility indicate the Veteran was transferred to a hospital for back surgery and subsequently transferred back to other units at the prison. The AOJ was unable to coordinate another VA examination with prison officials. Therefore, having made substantial attempts to schedule and conduct the examination and having exhausted all possible avenues for obtaining access to the Veteran for the examination, the Board finds that the appeal must be adjudicated based on the evidence of record. Having considered the medical and lay evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted on any basis. First, while the Board does not dispute the Veteran’s assertion regarding military noise exposure, his service treatment records document that despite the conceded noise exposure, a hearing loss disability was not manifested during military service. Instead, service treatment records demonstrate his hearing acuity improved between enlistment and separation examination such that his hearing was well within normal limits bilaterally in October 1978. Moreover, during military service, he denied any perceived hearing loss or ear problems. Based on these facts, the evidence supports the conclusion that a hearing loss disability did not begin during military service. Similarly, there is no competent medical evidence indicating that a hearing loss disability manifested to a compensable degree within one year of separation from service. As a result, service connection is not warranted for any sensorineural hearing loss on a presumptive basis under the provisions of 38 C.F.R. § 3.309(a). Finally, the opinion of the February 2008 VA audiologist is consistent with and supported by the evidence of record. Here, although the audiologist was unable to obtain valid test results, the examiner nevertheless considered whether any current hearing loss disability was related to the Veteran’s military noise exposure. The examiner opined (with more than a 50 percent degree of certainty) that any such hearing loss disability was not related to military noise exposure because the Veteran’s hearing was normal bilaterally at separation examination in October 1978 and because he reported that he first noticed diminished hearing in the 1990s, which the Board notes is contemporaneous in time with the documented head injury that caused a coma and ongoing blackouts. In addition, the threshold shift demonstrating improved hearing between enlistment and separation examinations further supports the examiner’s opinion. The Board finds the February 2008 examiner’s opinion is probative and persuasive because it was based on a review of the claims file and supported by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Neither the Veteran, his former representative, nor his current attorney has provided a favorable medical opinion linking any current hearing loss disability to his military service. (Continued on the next page)   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for a bilateral hearing loss disability, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel