Citation Nr: 18158821 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-02 026 DATE: December 18, 2018 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for left leg radiculopathy is remanded. FINDING OF FACT 1. The Veteran was exposed to loud noise and sustained acoustic trauma during service. 2. The Veteran's bilateral hearing loss did not manifest during active service, has not been continuous since service separation, is not etiologically related to service, and any current bilateral hearing loss did not manifest to a degree of 10 percent within one year of service separation. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 110, 1110, 1112, 1154(a), 5103, 5103A, 5107 (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 Veteran, who is the appellant in this case, served on active duty from October 1974 to November 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 1. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Sensorineural hearing loss, as an organic disease of the nervous system, are "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as an organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the diseases need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the diseases to the required degree during that time. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Veteran contends that the current bilateral sensorineural hearing loss disability, is due to military noise exposure during active military service. Specifically, he contends that the noise exposure he experienced from exploding artillery shells caused the current bilateral hearing loss. The Veteran has reported no post-service noise exposure. Having considered all the evidence of record, lay and medical, the Board first finds that the Veteran has a bilateral hearing loss disability that meets the VA regulatory criteria under 38 C.F.R. § 3.385 as he had auditory thresholds of 40 decibels or above at the 3000 and 4000 Hz ranges bilaterally during the January 2015 VA Audiology examination. After review of all the lay and medical evidence of record, the Board also finds that the Veteran was exposed to loud noise during active military service. The Veteran has competently reported being exposed to the loud noise from artillery shells. The DD Form 214 shows that the Veteran served with a military occupational specialty of cannon crewman. The Veteran's competent account of being exposed to loud noise from explosions during field exercises is consistent with the places, types, and circumstances of his service and is, therefore, credible. 38 C.F.R. § 1154(a). The Board next finds that the weight of the evidence is against the finding of chronic symptoms of bilateral hearing loss during service. Service treatment records show no complaints, treatment, or diagnosis of any hearing problems in service. The Veteran was administered audiology examinations at entrance and separation. On the October 1974 examination for entrance into service, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 25 Not Tested 15 LEFT 15 5 30 Not Tested 35 While the October 1974 entrance examination demonstrated some degree of hearing loss bilaterally under Hensley v. Brown, since the degree of hearing loss did not rise to the level acknowledged by VA in 38 C.F.R. § 3.385, the Board finds that the Veteran did not have a preexisting hearing loss disability in the bilateral ears. See McKinney v. McDonald, 28 Vet. App. 15, 23 (2017) (holding that a "defect" for the purposes of the presumption of soundness does not encompass a level of hearing impairment that is not considered a "disability" under 38 C.F.R. § 3.385). Therefore, the Veteran did not have a hearing loss disability for VA purposes at the service entrance examination. McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (holding that hearing loss that does not meet the requirements of § 3.385 is not a "defect" because it is not considered a disability for VA purposes). The Veteran's August 1978 exit examination was conducted in and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 Not Tested 25 LEFT 25 25 30 Not Tested 20 Therefore, the Veteran did not have a hearing loss disability for VA purposes at the service separation examination. McKinney v. McDonald, 28 Vet. App. 15, 29 (2016). The Board notes that the Veteran had opportunities to report any symptoms of hearing loss that he may have been experiencing during service and at separation. However, at no time did he report any hearing problems. Specifically, on the August 1978 service report of medical history completed at service separation, the Veteran checked "No" when asked if he then had or had any hearing loss. The Veteran further stated his present health was "Good" and the service examiner indicated no hearing problems. Further, the Veteran was assigned an H1 profile on the PULHES classification system both at entrance and on discharge. The PULHES classification system reflects the overall physical and psychiatric condition of a veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). For these reasons, the Board finds that hearing loss is a condition that would have ordinarily been recorded during service, but was not in fact reported; therefore, the complete service treatment records, which are absent of any complaint of, diagnosis of, or treatment for bilateral hearing loss, and which include clinical examination and testing that show hearing within normal limits, are of significant probative value and provide evidence against finding of chronic symptoms of bilateral hearing loss during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). After considering the evidence of record the Board finds that the weight of the evidence is against the finding that symptoms of bilateral sensorineural hearing loss were continuous since service, including to a compensable degree within one year of separation. The evidence shows the earliest complaint of hearing loss was in January 2015, the date of the VA examination, over three decades after service separation. The decades-long period between service and complaints of hearing loss is one factor that weighs against a finding of service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the Board relies on the absence of complaints or findings or treatment for hearing loss for at least 37 years after service as one additional factor that tends to show that hearing loss was not continuous since service separation. The evidence does not show that the Veteran's bilateral hearing loss disability manifested to a compensable degree (i.e., at least 10 percent) within one year of service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. §§ 3.307 and 3.309 is not warranted. The Board next finds the weight of the evidence is against the finding that bilateral hearing loss, which had its onset many years after service separation, is otherwise causally or etiologically related to service. See 38 C.F.R. § 3.303(d). The Veteran underwent a VA audiology examination in January 2015 to determine the etiology of any bilateral hearing loss. After testing found a current bilateral hearing loss disability, the VA examiner opined that is was less likely than not caused by military service. The rationale provided was, that based on the Veteran’s entrance and exit examinations the Veteran’s hearing was within normal limits. The VA examiner noted that the exit examination showed no significant changes in hearing bilaterally from the entrance examination. The VA examiners opinion was based on a review of the medical record, history from the Veteran, the current examination, and professional expertise. Although the Veteran has asserted that the current bilateral sensorineural hearing loss disability was caused by noise exposure during service, he does not have the requisite specialized expertise to diagnose hearing loss or render a competent medical opinion regarding its cause when, as here, symptoms first began many years after service separation. The etiology of hearing loss is a medical etiological question dealing with the origin and progression of the Veteran's auditory (nervous) system, and a hearing loss disability is diagnosed primarily on objective clinical findings and audiometric testing; thus, while the Veteran is competent under the facts of this case to relate symptoms of hearing loss that he experienced at any time, he is not competent to opine on whether there is a link between hearing loss that started many years after service and active service, including military noise exposure, because such an opinion requires specific medical knowledge and training in audiology. The Veteran does not allege, and the evidence does not show, that he has specialized training in audiology. Based on the evidence of record, there is no competent or credible evidence of a relationship between the Veteran's current bilateral sensorineural hearing loss and active duty service, including no credible evidence of chronic symptoms of bilateral sensorineural hearing loss in service, of bilateral sensorineural hearing loss to a compensable (10 percent) degree within one year of service separation, or continuity of symptomatology of bilateral sensorineural hearing loss since service that would serve either as a nexus to service or as the basis for a medical nexus opinion. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for bilateral hearing loss, including presumptively as a chronic disease, and the appeal must be denied. Because the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to Service Connection for a Back Disability and Left Leg Radiculopathy are Remanded. The Veteran contends the current back disability and radiculopathy were incurred as a result of military service. Specifically, the Veteran contends repetitive lifting of artillery shells during service resulted in the current back disability and radiculopathy. The Veteran’s service treatment records, which consist of only an entrance and exit examination, are silent for any back or radiculopathy disabilities. Post-service treatment records show the Veteran was diagnosed with lumbar spondylosis, osteoarthritis, and radiculopathy. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his or her claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (c)(4)(2017). To date, the Veteran has not been provided an examination to determine the nature and etiology of the current back disability or radiculopathy, therefore, a remand is necessary. The matters are REMANDED for the following action: 1. Associate any VA treatment records with the electronic claims file 2. After any records requested above have been obtained, schedule the Veteran for a VA examination, to determine the nature and etiology of the back disability. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. The examiner should provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current back disabilities, to include osteoarthritis had their onset in service, or within one year of separation from service, or are otherwise related to his active service, to include repetitive lifting? b) Is it at least as likely as not (50 percent probability or greater) that the current left leg radiculopathy had its onset in service, or is otherwise related to his active service, to include repetitive lifting? A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel